6 ms·

French judge rules GPL license must be enforced via contract law, not copyright

75 points by user5994461 6y ago

powersnail 6y ago
> The plaintiff sued for counterfeiting, in French law (fair enough that’s a thing covered by intellectual property). > The court was the Tribunal de grande instance (TGI de Paris) that handles civil cases related to authors rights and intellectual property. > The court dismissed the case, stating it has nothing to do with counterfeiting (author’s rights or IP), it’s a contractual dispute. There is a contract between the two parties, the GPL contract, that puts obligations on both parties [and Orange didn’t fulfill its obligations]. I'm a layman, and as a layman, that sounds reasonable. GPL is a license, and under local law, a license is a contract. So the court asked them to fight in a commercial court that deals with contractual dispute. Is there a controversy that I failed to understand?
bawolff 6y ago
Kind of click baity. They just ruled it was a contract under french law, and that a different court needs to decide.
- byroot 6y ago
  Just kind of? The title is totally misleading.
- user5994461 6y ago
  It was a major legal question whether the GPL could be enforced and whether that would be under copyright equivalent and/or as a contract. The ruling determined that, hence a major precedent. Took 9 years to get there, the plaintiff lost the case and had to pay a chunk of the legal fees. They'd not call that clickbaity.
  - simonh 6y ago
    It was actually the prosecuting party that lost, because their claim was judged inadmissible (to that specific court).
    - deleted 6y ago
      [deleted]
    - user5994461 6y ago
      fixed. commenting too quickly.
  - bawolff 6y ago
    Its clickbait because the title is misleading and over the top. That doesn't mean the precedent isn't interesting its own right.
  - Xelbair 6y ago
    does French legal system have to honor precedents?
- dang 6y ago
  Ok, I've taken a crack at making the title more accurate.
mangix 6y ago
Quelle bonne surprise, n'est-ce pas?
p410n3 6y ago
Most important part of the Article imo: "It sets in stone that software licenses are contracts and can only be settled in contract law / contract courts." (in France that is) So it's not that the GPL is useless in France, they were just suing for the wrong thing in the wrong court
- turbinerneiter 6y ago
  I think the key is that this means that the GPL in France now has no successfully history in court. One of the nice things about GPL in the US is that there is existing cases where it was successfully defended, and you can use this history as blueprint for your case. And the history is even used to inform the Judges decision. In France, GPL enforcement now has to start from scratch and can not re-use the enforcement strategies that worked in the US.
  - maeln 6y ago
    Actually, it is not that bad. Having this precedence now settled where does the GPL fit in the French system, which now make it much more simple to sue since you know which court and for what (breach of contract) to sue.
    - turbinerneiter 6y ago
      That's a good point. This case now _is_ the precedent that the others can build on. First step kind of.
- cheph 6y ago
  What other than contracts would they be?
  - contravariant 6y ago
    Well in the absence of a contract using the software counts as a breach of copyright. Apparently the French court has ruled that if someone intends to use GPL licensed software and doesn't adhere to the terms they should be sued for breach of contract first and breach of copyright second. It could have been the other way around, that failing to adhere to the terms in the license means there is no contract in the first place.
phoe-krk 6y ago
The title is inaccurate and somewhat alarmist; it is not as if the GPL just has been proclaimed unenforceable in France. The major take-out from the article for me is that in French law, licenses are contracts and therefore the litigation should be judged as a breach of contract, not as an act of counterfeiting (as it would happen in the US). A court that was asked to act on a counterfeiting issue therefore has nothing to do, and has essentially told the suing party to go and sue on breach of contract instead.
- user5994461 6y ago
  You can sue under counterfeiting in France as well (article L335-2). However the judge ruled that you can't, the contract takes precedence over IP law. Basically by using GPL you relinquish your ability to sue in copyright court and you can only go after the contract. That's a major precedent, 2 in 1.
- cheph 6y ago
  > in French law, licenses are contracts What else would they be? From Wikipedia https://en.wikipedia.org/wiki/Software_license https://en.wikipedia.org/wiki/Software_license: > A software license is a legal instrument (usually by way of contract law, with or without printed material) governing the use or redistribution of software. I mean I'm sure there are some exceptions, but this is the norm as far as I know and I'm not really sure it makes sense for it to be considered something else.
  - kazinator 6y ago
    What else would licenses be if not contracts? The could be something something else: documents granting you certain permissions and denying others in a unilateral way, whether you agree or not. "Contract" could be defined in such a way that such documents are not covered under definition. If a contract is some agreement that two parties negotiate and sign off on, then a copyright license isn't a contract.
    - dragonwriter 6y ago
MaximumYComb 6y ago
This isn't a violation of French copyright law, although it may be a violation of French contract law. This sets a precedent that software copyright disputes fall under French copyright law. That's the summary
formerly_proven 6y ago
EUPL to the rescue?
tsimionescu 6y ago
TLDR: the court ruled that the offending party was using the GPLd software under a lawful contract (the GPL), so the correct step is to claim breach of contract - copyright law (droits d'auteur) has not been breached.
nabla9 6y ago
It's hard to know if the guy writing this knows what he is writing about because he makes incorrect offhand statements about French law. French copyright: France has signed Berne convention and is also subject to European copyright law. Software patents in Europe: Harder to patent compared to the US, but still possible.
- user5994461 6y ago
  What statements are incorrect? How is the berne convention related to that? Every country has their own copyright law (usually not copyright but authors rights in Europe), the berne convention didn't change that.
  - nabla9 6y ago
    Berne convention is French law. International agreements become part of the national legal system after ratification and incorporation. In France–and with their monist system–ratified treaties are considered to be superior to domestic legislation even without special incorporation.
    - user5994461 6y ago
      French law is French law. Bern convention is the Bern convention (that was a hundred years ago by the way). How is the Berne convention relevant to the case, specifically? Are you from the US? I've only ever seen US folks try to get into the Berne convention and monism/dualism. I'd like to understand your perspective if you want to talk about these topics.
      - nabla9 6y ago
        >How is the Berne convention relevant to the case, specifically? Your claim that "France doesn’t have copyright." Droits d’auteurs (authors rights) is copyright. Here in Finland copyright is also called authors right (tekijänoikeus), but its just different term for the exactly same thing. France, US, EU all are parts of Berne convention, Two UCC's, WTO and TRIPS. French copyright court treats all these agreements superior to domestic legislation.
panny 6y ago
This happened over a year ago, right? https://www.entrouvert.com/actualites/2019/entrouvert-versus-orange/ https://www.entrouvert.com/actualites/2019/entrouvert-versus...
mytailorisrich 6y ago
Apart from the title and the alarmist tone it should also be noted that this decision dates from June 2019, so it's not exactly breaking news. Apparently the issue of whether a breach of license is a copyright violation or a contractual breach is not new in France and it is usually deemed copyright violation but it depends on the specific case. This case does not actually seem to settle the issue, and the court seems to have concluded that the plaintiff was seeking damages for a breach of contract, and not for copyright violation. This is all based on an article by French lawyers (in French) [1] [1] https://www.seban-associes.avocat.fr/le-non-respect-dune-licence-de-logiciel-releve-t-il-dune-responsabilite-delictuelle-du-fait-de-la-contrefacon-ou-dune-responsabilite-contractuelle https://www.seban-associes.avocat.fr/le-non-respect-dune-lic...
radicalcentrist 6y ago
I think the title is unintentionally misleading some of the commenters here because of ambiguous wording. My understanding is that it should be read as "French judge rules GPL license to be (inapplicable in French copyright court)" rather than "French judge rules GPL license to be inapplicable (in French copyright court)". I.e. the license does not apply within the bounds of copyright court - rather than a broader ruling of inapplicability issued from a copyright court. I may be wrong though, this is just how I interpreted the article.
- user5994461 6y ago
  Yes, exactly. Now try to find an unambiguous way to summarize that in 80 characters, the limit for titles.
  - deleted 6y ago
    [deleted]
bryanrasmussen 6y ago
Does this have any implications on an EU level, and if it is a contract does this have any implication on potential monetary damages?
bryanrasmussen 6y ago
Why is this flagged?
nickflood 6y ago
So my interpretation is (IANAL) that the Entrouvert released some library under GPL, and then when a big company used this free library, they wanted some money out of them and tried to use copyright mechanism to circumvent GPL as a free software license. Judge said they can't do that. So looks like it's a good case for GPL. The title is very misleading and some commenters here seem to be interpreting it differently, so please correctly if I'm wrong.
- user5994461 6y ago
  1) Entrouvert released some work under GPL (a SAML authentication library). 2) Orange (big company) used the library in some of their proprietary software, software that was sold to the French administration. It is a very good case for the GPL indeed.
madapeti 6y ago
I'm wondering what consequences this might have? If I understand correctly, instead of having a precedent that establishes GPL infringement as a violation of authors’ rights, now cases will need to be individually processed in contract courts. This should extend the timeframe of related legal proceedings, as the act of “contract violation” will need to be judged every time.
nephanth 6y ago
It was already well-known that the GPL was a bit problematic under French law, that's whythe CeciLL ( https://cecill.info/index.en.html https://cecill.info/index.en.html ) project existed iirc
knbknb 6y ago
The article contains a link to GPL3. So I assume that was the controversial license actually referred to in the trial?
kazinator 6y ago
The main takeaway message here is that the French court system is stupendously inefficient, taking nine years to figure out whether a case lands under counterfeiting or contracts.
- redis_mlc 6y ago
  Yes. When there's a major investigation, like an airline accident, the French will bring a retired judge out of retirement and he'll milk that investigation (since he has nothing better to do) for at least a decade: https://en.wikipedia.org/wiki/Air_France_Flight_447 https://en.wikipedia.org/wiki/Air_France_Flight_447 (In France, accidents automatically involve a judicial criminal investigation to assign blame. In the US, there's an NTSB investigation to find the root cause, but there's rarely a criminal investigation. However, it is common to have an FAA administrative hearing if poor piloting is found. Usually an FAA lawyer is present and the pilot does not retain a defence lawyer unless necessary.) The closest US example I can think of is the Madoff unwinding, but at least in that case there were thousands of victims to notify and settle with. The law firm billed over $1 billion in fees for 10 years of work: http://www.thenalfa.org/blog/over-1b-in-attorney-fees-in-madoff-related-matter/ http://www.thenalfa.org/blog/over-1b-in-attorney-fees-in-mad... When I first heard that, I was stunned, but there actually was a lot of work. What's interesting is that Madoff did have billions in assets to return, unlike the usual case where less than 1% is found.
aronpye 6y ago
Isn’t French law based on civil law so the decisions of courts are non-binding / do not carry precedent? Source, Wikipedia. I also find it odd that the French don’t distinguish between a contract and a licence, as in UK-US law a licence is a promise not to enforce one’s rights under copyright law rather than a contractual agreement.

75 points by user5994461 6y ago

> The plaintiff sued for counterfeiting, in French law (fair enough that’s a thing covered by intellectual property). > The court was the Tribunal de grande instance (TGI de Paris) that handles civil cases related to authors rights and intellectual property. > The court dismissed the case, stating it has nothing to do with counterfeiting (author’s rights or IP), it’s a contractual dispute. There is a contract between the two parties, the GPL contract, that puts obligations on both parties [and Orange didn’t fulfill its obligations]. I'm a layman, and as a layman, that sounds reasonable. GPL is a license, and under local law, a license is a contract. So the court asked them to fight in a commercial court that deals with contractual dispute. Is there a controversy that I failed to understand?

bawolff 6y ago

Kind of click baity. They just ruled it was a contract under french law, and that a different court needs to decide.

byroot 6y ago
Just kind of? The title is totally misleading.
user5994461 6y ago
It was a major legal question whether the GPL could be enforced and whether that would be under copyright equivalent and/or as a contract. The ruling determined that, hence a major precedent. Took 9 years to get there, the plaintiff lost the case and had to pay a chunk of the legal fees. They'd not call that clickbaity.
- simonh 6y ago
  It was actually the prosecuting party that lost, because their claim was judged inadmissible (to that specific court).
  - deleted 6y ago
    [deleted]
  - user5994461 6y ago
    fixed. commenting too quickly.
- bawolff 6y ago
  Its clickbait because the title is misleading and over the top. That doesn't mean the precedent isn't interesting its own right.
- Xelbair 6y ago
  does French legal system have to honor precedents?
dang 6y ago
Ok, I've taken a crack at making the title more accurate.

mangix 6y ago

Quelle bonne surprise, n'est-ce pas?

p410n3 6y ago

Most important part of the Article imo: "It sets in stone that software licenses are contracts and can only be settled in contract law / contract courts." (in France that is) So it's not that the GPL is useless in France, they were just suing for the wrong thing in the wrong court

turbinerneiter 6y ago
I think the key is that this means that the GPL in France now has no successfully history in court. One of the nice things about GPL in the US is that there is existing cases where it was successfully defended, and you can use this history as blueprint for your case. And the history is even used to inform the Judges decision. In France, GPL enforcement now has to start from scratch and can not re-use the enforcement strategies that worked in the US.
- maeln 6y ago
  Actually, it is not that bad. Having this precedence now settled where does the GPL fit in the French system, which now make it much more simple to sue since you know which court and for what (breach of contract) to sue.
  - turbinerneiter 6y ago
    That's a good point. This case now _is_ the precedent that the others can build on. First step kind of.
cheph 6y ago
What other than contracts would they be?
- contravariant 6y ago
  Well in the absence of a contract using the software counts as a breach of copyright. Apparently the French court has ruled that if someone intends to use GPL licensed software and doesn't adhere to the terms they should be sued for breach of contract first and breach of copyright second. It could have been the other way around, that failing to adhere to the terms in the license means there is no contract in the first place.

phoe-krk 6y ago

The title is inaccurate and somewhat alarmist; it is not as if the GPL just has been proclaimed unenforceable in France. The major take-out from the article for me is that in French law, licenses are contracts and therefore the litigation should be judged as a breach of contract, not as an act of counterfeiting (as it would happen in the US). A court that was asked to act on a counterfeiting issue therefore has nothing to do, and has essentially told the suing party to go and sue on breach of contract instead.

user5994461 6y ago
You can sue under counterfeiting in France as well (article L335-2). However the judge ruled that you can't, the contract takes precedence over IP law. Basically by using GPL you relinquish your ability to sue in copyright court and you can only go after the contract. That's a major precedent, 2 in 1.
cheph 6y ago
> in French law, licenses are contracts What else would they be? From Wikipedia https://en.wikipedia.org/wiki/Software_license https://en.wikipedia.org/wiki/Software_license: > A software license is a legal instrument (usually by way of contract law, with or without printed material) governing the use or redistribution of software. I mean I'm sure there are some exceptions, but this is the norm as far as I know and I'm not really sure it makes sense for it to be considered something else.
- kazinator 6y ago
  What else would licenses be if not contracts? The could be something something else: documents granting you certain permissions and denying others in a unilateral way, whether you agree or not. "Contract" could be defined in such a way that such documents are not covered under definition. If a contract is some agreement that two parties negotiate and sign off on, then a copyright license isn't a contract.
  - dragonwriter 6y ago

MaximumYComb 6y ago

This isn't a violation of French copyright law, although it may be a violation of French contract law. This sets a precedent that software copyright disputes fall under French copyright law. That's the summary

formerly_proven 6y ago

EUPL to the rescue?

tsimionescu 6y ago

TLDR: the court ruled that the offending party was using the GPLd software under a lawful contract (the GPL), so the correct step is to claim breach of contract - copyright law (droits d'auteur) has not been breached.

nabla9 6y ago

It's hard to know if the guy writing this knows what he is writing about because he makes incorrect offhand statements about French law. French copyright: France has signed Berne convention and is also subject to European copyright law. Software patents in Europe: Harder to patent compared to the US, but still possible.

user5994461 6y ago
What statements are incorrect? How is the berne convention related to that? Every country has their own copyright law (usually not copyright but authors rights in Europe), the berne convention didn't change that.
- nabla9 6y ago
  Berne convention is French law. International agreements become part of the national legal system after ratification and incorporation. In France–and with their monist system–ratified treaties are considered to be superior to domestic legislation even without special incorporation.
  - user5994461 6y ago
    French law is French law. Bern convention is the Bern convention (that was a hundred years ago by the way). How is the Berne convention relevant to the case, specifically? Are you from the US? I've only ever seen US folks try to get into the Berne convention and monism/dualism. I'd like to understand your perspective if you want to talk about these topics.
    - nabla9 6y ago
      >How is the Berne convention relevant to the case, specifically? Your claim that "France doesn’t have copyright." Droits d’auteurs (authors rights) is copyright. Here in Finland copyright is also called authors right (tekijänoikeus), but its just different term for the exactly same thing. France, US, EU all are parts of Berne convention, Two UCC's, WTO and TRIPS. French copyright court treats all these agreements superior to domestic legislation.

panny 6y ago

This happened over a year ago, right? https://www.entrouvert.com/actualites/2019/entrouvert-versus-orange/ https://www.entrouvert.com/actualites/2019/entrouvert-versus...

mytailorisrich 6y ago

Apart from the title and the alarmist tone it should also be noted that this decision dates from June 2019, so it's not exactly breaking news. Apparently the issue of whether a breach of license is a copyright violation or a contractual breach is not new in France and it is usually deemed copyright violation but it depends on the specific case. This case does not actually seem to settle the issue, and the court seems to have concluded that the plaintiff was seeking damages for a breach of contract, and not for copyright violation. This is all based on an article by French lawyers (in French) [1] [1] https://www.seban-associes.avocat.fr/le-non-respect-dune-licence-de-logiciel-releve-t-il-dune-responsabilite-delictuelle-du-fait-de-la-contrefacon-ou-dune-responsabilite-contractuelle https://www.seban-associes.avocat.fr/le-non-respect-dune-lic...

radicalcentrist 6y ago

I think the title is unintentionally misleading some of the commenters here because of ambiguous wording. My understanding is that it should be read as "French judge rules GPL license to be (inapplicable in French copyright court)" rather than "French judge rules GPL license to be inapplicable (in French copyright court)". I.e. the license does not apply within the bounds of copyright court - rather than a broader ruling of inapplicability issued from a copyright court. I may be wrong though, this is just how I interpreted the article.

user5994461 6y ago
Yes, exactly. Now try to find an unambiguous way to summarize that in 80 characters, the limit for titles.
- deleted 6y ago
  [deleted]

bryanrasmussen 6y ago

Does this have any implications on an EU level, and if it is a contract does this have any implication on potential monetary damages?

bryanrasmussen 6y ago

Why is this flagged?

nickflood 6y ago

So my interpretation is (IANAL) that the Entrouvert released some library under GPL, and then when a big company used this free library, they wanted some money out of them and tried to use copyright mechanism to circumvent GPL as a free software license. Judge said they can't do that. So looks like it's a good case for GPL. The title is very misleading and some commenters here seem to be interpreting it differently, so please correctly if I'm wrong.

user5994461 6y ago
1) Entrouvert released some work under GPL (a SAML authentication library). 2) Orange (big company) used the library in some of their proprietary software, software that was sold to the French administration. It is a very good case for the GPL indeed.

madapeti 6y ago

I'm wondering what consequences this might have? If I understand correctly, instead of having a precedent that establishes GPL infringement as a violation of authors’ rights, now cases will need to be individually processed in contract courts. This should extend the timeframe of related legal proceedings, as the act of “contract violation” will need to be judged every time.

nephanth 6y ago

It was already well-known that the GPL was a bit problematic under French law, that's whythe CeciLL ( https://cecill.info/index.en.html https://cecill.info/index.en.html ) project existed iirc

knbknb 6y ago

The article contains a link to GPL3. So I assume that was the controversial license actually referred to in the trial?

kazinator 6y ago

The main takeaway message here is that the French court system is stupendously inefficient, taking nine years to figure out whether a case lands under counterfeiting or contracts.

redis_mlc 6y ago
Yes. When there's a major investigation, like an airline accident, the French will bring a retired judge out of retirement and he'll milk that investigation (since he has nothing better to do) for at least a decade: https://en.wikipedia.org/wiki/Air_France_Flight_447 https://en.wikipedia.org/wiki/Air_France_Flight_447 (In France, accidents automatically involve a judicial criminal investigation to assign blame. In the US, there's an NTSB investigation to find the root cause, but there's rarely a criminal investigation. However, it is common to have an FAA administrative hearing if poor piloting is found. Usually an FAA lawyer is present and the pilot does not retain a defence lawyer unless necessary.) The closest US example I can think of is the Madoff unwinding, but at least in that case there were thousands of victims to notify and settle with. The law firm billed over $1 billion in fees for 10 years of work: http://www.thenalfa.org/blog/over-1b-in-attorney-fees-in-madoff-related-matter/ http://www.thenalfa.org/blog/over-1b-in-attorney-fees-in-mad... When I first heard that, I was stunned, but there actually was a lot of work. What's interesting is that Madoff did have billions in assets to return, unlike the usual case where less than 1% is found.

aronpye 6y ago

Isn’t French law based on civil law so the decisions of courts are non-binding / do not carry precedent? Source, Wikipedia. I also find it odd that the French don’t distinguish between a contract and a licence, as in UK-US law a licence is a promise not to enforce one’s rights under copyright law rather than a contractual agreement.