4 ms·

Is this largely because no one previously thought to consider the GPL, a US legal invention, under French law? The English speaking tech industry often forgets

Is this largely because no one previously thought to consider the GPL, a US legal invention, under French law? The English speaking tech industry often forgets other countries are other countries. How could they spend 9 years and 14000 Euros on a dispute that should have been settled in 1 day by any French lawyer? ("Licenses don't apply to counterfeit law in France; a license is treated as a contract")

jerf 6y ago
I think there's a bit of unkindness in your post. It isn't that nobody in the last 31 years working with the GPL has ever slapped their forehead and suddenly realized "Oh my gosh! Other countries exist!" It's that trying to write something like the GPL to work in multiple major legal systems at once is somewhere between superhuman and impossible. In the "impossible" case, there may be legal systems where neither it nor anything substantially like it can either in theory (by the letter of the law) or in practice (by how people behave, such as places like China that have historically treated foreign IP contracts as suggestions at best) is possible.
user5994461 6y ago
They considered it, that's partly why the GPL is drafted as a contract and it is the way is, to be enforceable in countries that accept contracts but may not accept copyright. There's a similar issue in US law, you could make a case base on copyright ground or on contract grounds. You should typically sue on both grounds (and anything else you can think of) to leave no escape plan to the offender. I believe that copyright is "stronger" and can award more punitive damages so it's preferred, it's all about money of course. France have droits d'auteurs (authors rights) and contract law. There's also different ways you could sue for different outcomes, the developers went for counterfeiting hoping to seek the most damages (a very reasonable choice). The judge ruled that you can only go to contract court because GPL is a contract and that's it, he pretty much ditched the case. edit: There's a French principle stating you can't be pursued for both a contract and a civil violation, the contract takes precedence, in a sense by having GPL the developers ditched their right to hold their authors rights. lol Of course there's another 10 major details covered by 10 other laws that conflict with one another and could have justified any outcome. It's all fascinating and incredibly messy. If you thought they should have gone to the right court, it's not simple, "right court" wasn't a defined variable (and it is still not because the case is going to appeal to try to redefine what's the right court).
- bdowling 6y ago
  > why the GPL is drafted as a contract The GPL is not a contract. See, e.g., [0] or [1]. [0] Jones, P. "The GPL Is a License, not a Contract" https://lwn.net/Articles/61292/ https://lwn.net/Articles/61292/ [1] Moglen, E. "Enforcing the GNU GPL" https://www.gnu.org/philosophy/enforcing-gpl.en.html https://www.gnu.org/philosophy/enforcing-gpl.en.html
  - user5994461 6y ago
    Wow that's a very poor article from LWN. "License" is an American concept that doesn't exist in France and much of the world. See this article, section "French Law" with some explanations https://thehftguy.com/2020/09/15/french-judge-rules-gpl-license-to-be-inapplicable-in-french-copyright-court/ https://thehftguy.com/2020/09/15/french-judge-rules-gpl-lice...
    - bdowling 6y ago
      > "License" is an American concept that doesn't exist in France and much of the world. The concept of license exists in France even if the word used is different. In common law countries, we say that a contract must be supported by obligations on at least two parties in order to be enforceable. What we call a license fails that requirement because it is one-sided and merely gives permission to do something, usually with conditions. But the distinction is largely academic and the concepts are similar (e.g., permission to do a thing is functionally the same as a promise not to sue if the person does the thing). From your article, it appears that the word contrat is used in France for for both bilateral contracts and these types of permissive use agreements, e.g. contrat d’utilisation, which seems perfectly reasonable because of how similar the concepts are. So, the concept clearly exists in France even if the word used is different. Similarly, the rights that common law countries call copyright are encompassed by Author's Rights, specifically the "economic rights". Author's Rights, however, also include "moral rights" that are not a part of copyright. Those rights may also exist in common law countries, but they may fall under some other area of law, such as "Right of Publicity" or "Right of Personality". In both examples the concepts and rights exist (mostly) in various legal systems, even if the words used are different or if the rights are found in different sections of the law.
belorn 6y ago
It is a bit strange that the lawyer did not file a case under the right law and under the right court, since one would guess that is the job of the lawyer to know. Then again a copyright license is a bit of a strange beast. I could rewrite a license as being a simple set of permission, with a list that goes through every combination of behavior for which the license permits. However doing so would be extremely impractical, so we instead have a bunch of permissions with added conditions. This in french law seems to then become a contract which has parties that has rights and obligations.

jerf 6y ago

I think there's a bit of unkindness in your post. It isn't that nobody in the last 31 years working with the GPL has ever slapped their forehead and suddenly realized "Oh my gosh! Other countries exist!" It's that trying to write something like the GPL to work in multiple major legal systems at once is somewhere between superhuman and impossible. In the "impossible" case, there may be legal systems where neither it nor anything substantially like it can either in theory (by the letter of the law) or in practice (by how people behave, such as places like China that have historically treated foreign IP contracts as suggestions at best) is possible.

user5994461 6y ago

They considered it, that's partly why the GPL is drafted as a contract and it is the way is, to be enforceable in countries that accept contracts but may not accept copyright. There's a similar issue in US law, you could make a case base on copyright ground or on contract grounds. You should typically sue on both grounds (and anything else you can think of) to leave no escape plan to the offender. I believe that copyright is "stronger" and can award more punitive damages so it's preferred, it's all about money of course. France have droits d'auteurs (authors rights) and contract law. There's also different ways you could sue for different outcomes, the developers went for counterfeiting hoping to seek the most damages (a very reasonable choice). The judge ruled that you can only go to contract court because GPL is a contract and that's it, he pretty much ditched the case. edit: There's a French principle stating you can't be pursued for both a contract and a civil violation, the contract takes precedence, in a sense by having GPL the developers ditched their right to hold their authors rights. lol Of course there's another 10 major details covered by 10 other laws that conflict with one another and could have justified any outcome. It's all fascinating and incredibly messy. If you thought they should have gone to the right court, it's not simple, "right court" wasn't a defined variable (and it is still not because the case is going to appeal to try to redefine what's the right court).

bdowling 6y ago
> why the GPL is drafted as a contract The GPL is not a contract. See, e.g., [0] or [1]. [0] Jones, P. "The GPL Is a License, not a Contract" https://lwn.net/Articles/61292/ https://lwn.net/Articles/61292/ [1] Moglen, E. "Enforcing the GNU GPL" https://www.gnu.org/philosophy/enforcing-gpl.en.html https://www.gnu.org/philosophy/enforcing-gpl.en.html
- user5994461 6y ago
  Wow that's a very poor article from LWN. "License" is an American concept that doesn't exist in France and much of the world. See this article, section "French Law" with some explanations https://thehftguy.com/2020/09/15/french-judge-rules-gpl-license-to-be-inapplicable-in-french-copyright-court/ https://thehftguy.com/2020/09/15/french-judge-rules-gpl-lice...
  - bdowling 6y ago
    > "License" is an American concept that doesn't exist in France and much of the world. The concept of license exists in France even if the word used is different. In common law countries, we say that a contract must be supported by obligations on at least two parties in order to be enforceable. What we call a license fails that requirement because it is one-sided and merely gives permission to do something, usually with conditions. But the distinction is largely academic and the concepts are similar (e.g., permission to do a thing is functionally the same as a promise not to sue if the person does the thing). From your article, it appears that the word contrat is used in France for for both bilateral contracts and these types of permissive use agreements, e.g. contrat d’utilisation, which seems perfectly reasonable because of how similar the concepts are. So, the concept clearly exists in France even if the word used is different. Similarly, the rights that common law countries call copyright are encompassed by Author's Rights, specifically the "economic rights". Author's Rights, however, also include "moral rights" that are not a part of copyright. Those rights may also exist in common law countries, but they may fall under some other area of law, such as "Right of Publicity" or "Right of Personality". In both examples the concepts and rights exist (mostly) in various legal systems, even if the words used are different or if the rights are found in different sections of the law.

belorn 6y ago

It is a bit strange that the lawyer did not file a case under the right law and under the right court, since one would guess that is the job of the lawyer to know. Then again a copyright license is a bit of a strange beast. I could rewrite a license as being a simple set of permission, with a list that goes through every combination of behavior for which the license permits. However doing so would be extremely impractical, so we instead have a bunch of permissions with added conditions. This in french law seems to then become a contract which has parties that has rights and obligations.