Does incorporation of open-source (GPL-licenced) software by freelancers violate Upwork T&C?

Question

Some widely used open-source software is distributed under restrictive licences: for instance, the R language uses GPL v.2/v.3. This and other copyleft licences impose several obligations, such as the availability of the source code, which seem to contradict Section 6.2 of Upwork's T&C:

... Freelancer agrees that it will not incorporate into Work Product or otherwise deliver to Client any software code for which the use or distribution of the code will create (or purport to create) obligations for Client to grant any rights or immunities under Client intellectual property to a third-party, including without limitation any obligation that the Work Product or Client software combined with, derived from, or distributed with such Work Product (x) be disclosed or distributed in source code form, (y) be licensed for the purpose of making derivative works, or (z) be redistributable at no charge.

Suppose a freelancer must incorporate R in a low-budget project -- say,$15 fixed -- for which the standard T&C is the only feasible option.

Questions:

• Is there a legal contradiction in such cases?
• What are the implications and remedies for Upwork and freelancers?

Answer 1

We cannot help interpret a specific contact.

But, if:

• a) a contract obligates a Freelancer to not deliver a product that would further obligate the Client to distribute source code; and
• b) the use of R would require the Client to distribute the source code;

then the Freelancer must not deliver a product that uses R.

You go on to say, "Suppose a freelancer must incorporate R." But you don't say where this "must" arrises from, and that supposition has already been ruled out by the previous assumptions in any case.

If the "must" is simply coming from a client demand, it would probably be better for the parties to not enter into a contract that prohibits delivery of precisely what the client is demanding.

Of course, the practical legal risk might be low if the client party is actually asking for a deviation from the contract, but whether to accept that risk would be a judgment call to be made by the freelancer.

The budget is irrelevant to the legal issue. The feasibility of using an alternative contract is also irrelevant—all that matters is the contract that is entered into by the parties.

Answer 2

There is no legal contradiction. The R language does not use GPL. The R runtime does. Now, that R runtime reasonably needs to be bundled with a program written in the R language. But by GPL rules, bundling is not a covered activity, and certainly not in the sense of Section 6.2 of Upwork's T&C.