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French Appeal Court affirms decision that copyright claims on GPL are invalid

297 points by user5994461 5y ago

user5994461 5y ago
Full title too long for HN "French Appeal Court affirms decision that copyright claims on GPL are invalid; must be enforced via contractual dispute" There was a brief HN discussion on the initial ruling 2 years ago https://news.ycombinator.com/item?id=24478769 https://news.ycombinator.com/item?id=24478769 the case just went to appeal earlier this year. Note that the last HN discussion never really happened, it gathered both too many votes and flags in 20 minutes and got automatically hidden, only to be unblocked by a mod later. It would be great if you could refrain from flagging this time, even if the ruling comes as a culture shock to you. I assure you it is not clickbait. The authors of GPL software are really spending years and a fortune in court only to have all their copyright claims dismissed. The ruling passed the High Court (TGI), the Appeal Court and the CJUE.
- andi999 5y ago
  Did they ask the FSF to chip in?
  - user5994461 5y ago
    What for? What's the relevance of the FSF here? Well, if you really want an anecdote with the FSF. I happen to have one :D The court used the French GPL translation from the FSF. The very translations saying that they are not official translations and cannot be used in court. Well, the FSF doesn't get to decide what's admissible in court. https://www.gnu.org/licenses/translations.en.html https://www.gnu.org/licenses/translations.en.html
    - phaemon 5y ago
      That page doesn't say it can't be used in court. In fact, the word "court" doesn't even appear on the page. Do you have an anecdote that isn't a lie?
      - simiones 5y ago
        The page is very clear that it only considers the English document to constitute the real contract, and all translations as helpers, not as legal documents: > The FSF does not approve license translations as officially valid. The reason is that checking them would be difficult and expensive (needing the help of bilingual lawyers in other countries). Even worse, if an error did slip through, the results could be disastrous for the whole free software community. As long as the translations are unofficial, they can't do any legal harm. > ... > We give permission to publish translations of GNU licenses into other languages, provided that: > You label your translation as unofficial to inform people that they do not count legally as substitutes for the authentic version (see below for how to do this).
        phaemon 5y ago
        Yes, that is what it says. Not "cannot be used in court". Just that they consider the English version authoritative. Are you trying to tell me you can't tell the difference between these statements?
        kbenson 5y ago
        do not count legally as substitutes for the authentic version isn't the exact same wording, but I don't think it's a leap to go from "this is not a legal document" to "this is not to be used in court" when referring specifically to contracts and licenses. It's at least no more of a leap than telling someone they're lying when they're paraphrasing, and in a way many people think is fairly accurate.
        phaemon 5y ago
        Ok, I didn't realize anyone would really think that only legal documents could be used in court. It seems an utterly bizarre idea to me. Did you think that an eyewitness account of a murder would be inadmissible because it's not a legal document?
    - xxpor 5y ago
      That's not that unusual. If you have a contract written in something other than English and it ended up in a US court, the court would probably look at this translation and essentially be like, well, even though it says that it was translated by a non-party to this case and there's no reason to believe it's intentionally mistranslated, so good enough. Especially if the parties to the dispute didn't have any objections.
JPLeRouzic 5y ago
> Orange Business Service used the library when developing a nationwide authentication service for France since 2005 (mon service public). I was at France Telecom R&D in a team working in authentication, and remember clearly admiring the work of entre'ouvert. At the time, I tested Lasso [0] on my own computer but never used it in real projects. Colleagues also found it very interesting. I tested many similar open source framework, such as SimpleSamlPhP which we used (and give credit) in a European research project. There was also a US company making an authentication framework in Java. > My guess is a government contract like can go for 7 to low 8 figures. That's as far as possible to the reality. The French state is constantly broke, for example it argued of IT problems to delay military staff pay by several month and delay providers payment by a year (Louvois), while making a law that forbids the private sector to delay payments more than two months! It asked to Orange to work for free on many topics and it probably did the same at other big companies. Never do business with the French state! [0] https://lasso.entrouvert.org/ https://lasso.entrouvert.org/
- derefr 5y ago
  > The French state is constantly broke Is this an EU “we can’t set our own monetary policy, we have to ask the ECB nicely to do it for us” thing? Because the idea of a state [of a country whose populace are not, themselves, in an economic crisis] being unable to just make up some money to give people (in the form of e.g. T-bonds), sounds very strange to my ears—almost harkening back to a gold-standard era, where states that couldn’t find precious metals to dig out of the ground could run out of raw materials to mint new coinage out of. Is it just that French treasury bonds aren’t valued at at-least-par on the market? Is the government of France a bad/risky investment in the eyes of mutual-fund portfolio managers, something not to base the stable part of their portfolios around? (If so, what do French portfolio-managers use as stability? Other governments’ T-bonds?) (HN is probably not the place to get into an answer of the level of detail appropriate to these questions, so I’d appreciate links to resources answering them!)
  - jcelerier 5y ago
    > Because the idea of a state [of a country whose populace are not, themselves, in an economic crisis] being unable to just make up some money to give people but, it's a debt, it increases how broke is the state (in France it's super super badly seen to have any debt, even if financially it is considered an asset, socially the word "debt" is considered as an absolute evil)
belval 5y ago
This is an interesting yet very frustrating read. Every few weeks we see a post on HN about an MIT-licensed project that gets picked up by AWS or Azure and the general response is "should've been GPL". This case right here highlights that in France that doesn't work either. Their equivalent of AT&T used GPL software (admitted to it) but claims that it's a contract issue and not a copyright one so the case gets thrown out.
- unmole 5y ago
  GPL doesn't force you to release your changes to the outside world if you don't distribute it.
  - eqvinox 5y ago
    Indeed, that's what the AGPL is for.
    - enigma-reload3d 5y ago
      despite the general hate against SSPL from mongo has, it's more powerful than agpl
    - tsimionescu 5y ago
      AGPL only changes things if you give access to your software over the internet. If you're just using the software internally (e.g. it's used in the corporate SSO solution for access to an internal wiki) than no OSS license will force you to publish the code. Furthermore, if I contract a company to build a service which I will run internally, and they use (A)GPL software in this service that they are building for my internal use, neither I nor the company probably have any requirement to publish the source code to anyone, perhaps except that the contractor may have to provide me with the source code if this was not otherwise stipulated. But you don't have any right to see the code that they modified for me, even if you are the initial author of that code.
      - R0b0t1 5y ago
math-dev 5y ago
A (incomplete) Tl;DR: The strategy that is well tried in the US is to go for counterfeiting/copyright, to seek the most damages. Copyright/IP law can carry significantly more damages, both in France and in the US, compared to a contractual dispute. (Remember that it’s all about money!) For an IP violation, the court typically looks at the gain of the counterfeiter. That may be winning and executing the government contracts for Orange. My guess is a government contract like that can go for 7 to low 8 figures. For a contractual violation, the court typically looks at the loss of the victim. That may be some licensing fees and contracting fees for Entr’Ouvert. My guess is a library like that can go for 6 figures, while the bigger player selling OIDC/SAML solutions (Sun, ForgeRock, Oracle, Microsoft) go for an amount per user per year, easily adding up to 7 figures (but I don’t think that one standalone library from a small vendor in 2003 can do that). Entr’Ouvert followed the counterfeiting strategy, they sued for counterfeiting and got dismissed. (I should stress out that it was a very reasonable strategy, similar law exist, it should have worked, it just didn’t).
horsawlarway 5y ago
As an American reading through this, this has a distinct smell of French courts ruling in ways favorable to the national ISP because it might cost the government money to do otherwise. Basically - this looks pretty bad from my perspective. Anyone with more context who can explain how copyright could exist in France if all licenses are considered contracts instead?
- Thomashuet 5y ago
  The other side (Entr’Ouvert) is also French. I don't see how you can think this is a case of France against not France.
  - imwillofficial 5y ago
    One is a national asset and one isn’t? (Perhaps I’m wrong)
  - edoceo 5y ago
    Nobody thinks it's France v !France. Its big national corp (Orange) vs a little guy. The court sided with the BigCo. That's the issue.
    - bpodgursky 5y ago
      Yeah, if Orange was willing to do this once, the chances are that their tech stack would be swiss cheese if they had to excise all the GPL-licensed tech they are using without rights. The precedent is more important to them than the $3mm.
- polote 5y ago
  > to the national ISP It is the previous national ISP. I'm not even sure it has ever been a private ISP. It's completely private now [0] (but still owned at 30% by the government) and they have three big competitors: SFR, Iliad, Bouygues [0] https://www.google.com/search?client=firefox-b-d&q=EPA:+ORA https://www.google.com/search?client=firefox-b-d&q=EPA:+ORA
- 5y ago
eqvinox 5y ago
FYI / "FHNI": The GPL also has issues in Taiwan, apparently because it's illegal there to enforce its constraints on anything but the first user / immediate level. Or something like that — not a lawyer here. Found this paper on the topic: http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf But honestly I don't understand too much of it. Either way if France joins Taiwan, that sure isn't a good thing for people relying on the GPL, but it won't break its back either. Some "industry of opportunity" may spring up (it definitely has in Taiwan), but it's not the end of the world.
- fartcannon 5y ago
  If the enforcement body is corrupt, no licence will stand.
- snovv_crash 5y ago
  You can still pursue GPL violations in France, it just has to be framed as contract violations rather than copyright violations.
  - dathinab 5y ago
    Depending on the context you probably still could frame it as a copyright violations. My guess is that the problems lies in the aspects of the automatic termination of the contract not being valid in France law in exactly that way. I.e. it being "in between" valid and invalid until the court case around the termination is settled and in turn it means there is still a (breached) contract or similar. If that is the case you might be able to avoid this problem by making sure the contract is properly and explicitly terminated before you start suing, but it also requires the offender to continue using your software after you explicitly terminated the contract. I.e. you couldn't do it in retrospective, and it probably also would be a problem if there is a ongoing curt case for damages due to the breach of contract...
- PixelOfDeath 5y ago
  > The GPL also has issues in Taiwan, apparently because it's illegal there to enforce its constraints on anything but the first user / immediate level. NEW! License restriction free Linux source code for only $ 9.95 ! Only used once! ORDER NOW!
myWindoonn 5y ago
It's too bad that AGPL wouldn't have been more effective; this seems like a dead end for copyright-based copyleft in France. We'll have to make extra effort to phrase things in terms of contract-based copyleft. Although, doesn't this suggest a meeting of the minds? Free Software is usually proffered and consumed without such a meeting. So was a contract actually formed? I'm skeptical.
twooster 5y ago
Would this be fixable by adjusting, somewhat, the terms of the GPL? If the issue is that this is a contractual violation, would it be possible to put preconditions before granting a license in the first place -- such as requiring that legal claims for both copyright violation _and_ contractual violation are explicitly allowed before the license is granted?
- deleted 5y ago
  [deleted]
- bluGill 5y ago
  This case has both parties in France so the courts will probably rule that the license was made in bad faith since it isn't valid in France, I have no idea what the court will do after that. (in the US the courts will look down on a license made in bad faith, I have no idea about France)
  - deleted 5y ago
    [deleted]
- user5994461 5y ago
  The license already has preconditions. That's part of the problem. To determine whether there is a violation (copyright or anything), it first requires to determine whether the conditions are respected, which first requires to determine what are the conditions, which first requires to interpret the entire contract to determine the obligations and conditions and everything on both parties. In software terms, you've got a deadlock, can't consider copyright without considering the contract. (This plays really poorly in practice with these being different claims going to different courts).
  - twooster 5y ago
    It seems to me that if, e.g., mandatory arbitration clauses can be binding, then so could a precondition clause allowing particular types of torts (or disallowing particular types of defenses). I imagine it wouldn't be too hard to convince a judge that engaging in a defense explicitly disallowed by the contract in dispute isn't fair play. I guess the question is whether you can have preconditions at all on blanket licenses? For example, if I say "anyone who sends me, by registered mail, a check for 50 EUR will be granted a license", and someone just uses my code without even attempting to send the check, is that copyright violation or contractual violation? It seems to me that would be a copyright violation, or else all copyright violations are just latent contract violations, in their most absurd extents ("I didn't sign the licensing contract they offered, but because they offered one at all, it's a contractual violation" seems to be a particularly weak defense).
Mikeb85 5y ago
I'm just curious how anyone figures this example is a GPL violation? The GPL states (and Stallman has discussed and stated) that if an organization uses GPL code internally and never redistributes the code outside the organization, it's perfectly fine. Which seems to be this case. So why does anyone think it's a violation and what's the point of this article? Edit - also, the GPL is clearly a contract. Stallman has touched on copyright issues too, saying (for example) that a game can be open source but the assets still copyrighted. They're different concepts altogether.
- mzs 5y ago
  I thought Orange Business Services sold it to the French gov, did they not?
  - zozbot234 5y ago
    Did they sell the software to the French gov, or deploy a managed service that only used this software under the hood (thus avoiding even the "public performance" part of copyright, that might otherwise apply to a SaaS deployment)? The distinction is quite critical to this case, if they did the latter it's no different than Amazon doing the same thing.
  - Mikeb85 5y ago
    Using it for a service still isn't 'redistribution' as per the GPL. It still wouldn't be considered to have left the organization. It's perfectly fine use as per the GPL. And if it's the French government who contracted the whole thing, they're the original owner, not Orange, but either way it's fine (an owner giving access to a contractor to work on a program containing GPL code isn't considered redistribution either, nor is a contractor using open-source code in a project for a client). Edit - also even if Orange used it internally, then made the French government a service which uses it, as long as Orange simply re-sourced the code for the government it's fine. It's like Amazon selling hosted Linux images.
    - user5994461 5y ago
jeroenhd 5y ago
What I think is the real meat of the story: > That is to conclude, by having a contract (a license is a contract), you lose your rights to pursue any IP/copyright claims (the two are exclusive in French law). GPL was written by lawyers for the American system of law and France is not part of the USA. The systems of law are different and therefore the implications of GPL-licensing code are different. I'd be very surprised if France is the only country that treats software licenses like this. The basis of the USA system of law is completely different from even other European courts, let alone non-Western systems of law. Assuming you can write a license for use in the USA and enforce it the world around is quite foolish.
- jlos 5y ago
  Should've gotten some Canadian lawyers involved in GPL. Due to the combined heritage of English and French (Quebec) Canada has both Civil law (French) and Common Law (English).
  - elliekelly 5y ago
    I believe Louisiana uses a combination of civil and common law as well for the same reason.
  - jibcage 5y ago
    As I understand it, Louisiana is a civil law state as well: https://www.bloomlegal.com/blog/what-is-unique-about-louisiana-law/ https://www.bloomlegal.com/blog/what-is-unique-about-louisia...
  - retrac 5y ago
    While this is a true factoid, civil law in Canada is restricted to Quebec, and is ultimately subordinate to the constitution, which is interpreted in a nearly identical manner to American law, in the common law style. The civil law influence is mostly restricted to Quebec in areas of provincial jurisdiction (family law, small claims, etc.) The Copyright Act is federal and would get the common law handling. (Approximately the same situation is true in the USA with Louisiana, whose state laws also have a form inherited or at least strongly influenced by the Napoleonic code, ultimately, but since harmonized to fit into a common law system.)
blueblisters 5y ago
My understanding of the case as a legal noob: 1) The defendant was not willing to redistribute the source-code it and hence they were sued for violation of GPL from the owner of the software under copyright law. 2) French court did not recognize the validity of software licenses to be enforced under French copyright law. Does that mean GPL and all similar free licenses that rely on copyright law cannot be enforced in similar jurisdictions? Does anyone have a list of countries/jurisdictions where a similar ruling is likely to happen? What alternatives exist for free software in those countries?
- bluGill 5y ago
  > Does that mean GPL and all similar free licenses that rely on copyright law cannot be enforced in similar jurisdictions You missed one important point 3) The French court said take this is for the contracts courts, take it to them - something that hasn't happened yet. The contract courts have not ruled (this hasn't even been brought to them from what I can tell) on this case at all, but probably would find in favor of the GPL. The GPL probably can be enforced in France, but it is a contract violation not a copyright violation which apparently the FSF doesn't like. (I'm not clear on why - possibly because the court award would be much less)
  - lukeschlather 5y ago
    The FSF is not mentioned in this article, nor are they the author of the article. I was surprised when the author wrote "Remember that it’s all about money!" because that is never what the FSF says - in fact the FSF whenever they sue they always say "We don't care about money, we want you to comply with the terms of the GPL."
    - bluGill 5y ago
      Good point. Though the courts might disagree and decide it is about money anyway. I have no idea how France will handle this - nor any of the other countries in the world.
- dathinab 5y ago
Tobu 5y ago
Interestingly, in another decision, that did go as high as the Cour de Cassation, Microsoft did get a license violation treated as counterfeiting, with higher monetary damages. - https://www.legalis.net/jurisprudences/cour-de-cassation-ch-criminelle-arret-du-19-avril-2017/ - https://www.legalis.net/actualite/contrefacon-de-windows-confirmation-du-mode-de-calcul-de-la-reparation/ Found via https://linuxfr.org/users/spacefox/journaux/une-violation-de-licence-est-une-rupture-de-contrat-et-pas-une-contrefacon-en-france https://linuxfr.org/users/spacefox/journaux/une-violation-de... More here on the Entr'ouvert vs Orange case: - https://www.legalis.net/jurisprudences/cour-dappel-de-paris-pole-5-ch-2-arret-du-19-mars-2021/ - https://www.legalis.net/actualite/pas-daction-en-contrefacon-pour-le-non-respect-dune-licence-de-logiciel/ - https://www.legalis.net/jurisprudences/tgi-de-paris-3eme-ch-3eme-section-jugement-du-21-juin-2019/ - https://www.legalis.net/actualite/non-respect-dune-licence-libre-irrecevabilite-de-laction-en-contrefacon/
- 6gvONxR4sf7o 5y ago
  FYI when you format links that way, they aren’t clickable. I think it’s because you’re indenting them which makes them parse as code.
  - db48x 5y ago
    It’s really a lot of work, but if you select one and right–click on it, then you can choose to open it in a new tab/window/etc.
  - poetaster 5y ago
    Um, not reading in a web browser. No mouse.
- user5994461 5y ago
  Interesting case https://www.legalis.net/jurisprudences/cour-de-cassation-ch-criminelle-arret-du-19-avril-2017/ https://www.legalis.net/jurisprudences/cour-de-cassation-ch-... Looks like it's about someone selling Windows, without paying Microsoft and/or without having a reseller partnership with Microsoft. The article is sadly very short and lacking any details. There is no contract involved depending on the circumstances.
yorwba 5y ago
This article has me confused about the legal status of licenses in US copyright law. Are they not contracts? I mean, the GPL promises the recipient something (the right to make copies of a software) in return for something else (the source code for any modifications). That smells like a contract to me.
- unnah 5y ago
  It seems that unlike in civil law countries, in common law countries such as the UK and US, a license is a separate legal category from a contract. A license can be interpreted as a contract as well, but you can make a "bare license" that is simply a grant of permission and not a contract all. In civil law countries such as continental Europe, all copyright licenses are interpreted as contracts. My understanding is based on this LWN article summarizing the opinions of several legal experts on the subject: https://lwn.net/Articles/747563/ https://lwn.net/Articles/747563/
  - deleted 5y ago
    [deleted]
- user5994461 5y ago
  How about I make a second article to explain licenses vs contracts in US and the rest of the world? Your question went to US court in 2017. I wanted to cover that briefly but the blog is already quite long without getting into more specifics about licenses in the US.
jrm4 5y ago
Aha. Okay. So (even if you're super pro Free Software like me) this doesn't seem all that bad, I think -- the error was the small guys "going for the money," but the GPL was never much about money, it's about compliance with the license. Does this seem right? (Yeah, I am a lawyer, but also not French)
- black_puppydog 5y ago
  I agree that the goal is to get people (actually mostly businesses) to comply with the license, but that is sadly tied to what the consequences are if you are found to be in violation. The requirement go through contract violation instead of counterfeit will in practice drastically reduce these costs, and thus the incentives for compliance, while at the same time reducing the incentive of the authors to even try defending their rights.
  - jrm4 5y ago
    It can be, but as I recall, the crux of the whole router WRT story was the FSF or whoever called up Linksys and said, "You're in violation, but calm down, we don't want money. Let's talk." -- and that is why we have e.g. DD-WRT, Tomato et al today.
- 6gvONxR4sf7o 5y ago
  If you want to get compliance and legal cases take a decade, then damages need to cover a decade of lawyers, plus however much internal time/cost you spend on it over that decade.
homarp 5y ago
https://en.m.wikipedia.org/wiki/CeCILL https://en.m.wikipedia.org/wiki/CeCILL CeCILL (from CEA CNRS INRIA Logiciel Libre) is a free software license adapted to both international and French legal matters, in the spirit of and retaining compatibility with the GNU General Public License (GPL).
- resplin 5y ago
  In my opinion, the EU Public License is the most carefully thought out FLOSS license for European jurisdictions. https://en.m.wikipedia.org/wiki/European_Union_Public_Licence https://en.m.wikipedia.org/wiki/European_Union_Public_Licenc...
- bdauvergne 5y ago
  Enforcing CeCILL in France on the same case would give the same result, if the court use the same interpretation of the law. That's not a problem with the license, it's a problem of the interpretation of copyright law (or "Droit d'auteur") in France with respect to copyleft license (any copyleft license with serious "obligations" to honor, so not BSD and alike, would give the same result).
not2b 5y ago
Of course IANAL (je ne suis pas avocat). But in the end it may not matter. While GPL2 says "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works", if a French court decides that if someone modifies and distributes a GPL covered work an enforceable contract is formed, it seems that the effect is the same: they have to comply with the terms.
- denton-scratch 5y ago
  It does matter: you can no longer sue for copyright violation, you can only sue for contract violation. If you violate a contract, the court will order compensation calculated to "make you whole" again - to restore things to how they would have been before the contract was executed The author seems to think there may be some issue for a writer of free software to demonstrate that he had been harmed by the violation; which wouldn't be an issue in a copyright suit. Well, at least here, copyright violation carries statutory damages. IANAL.
  - R0b0t1 5y ago
    One of the strengths of the GPL is that companies don't like it for some reason. Since they don't like it, you can offer to sell them different licensing terms. That is what the damages are. It's not $0, it's all the money you missed out on from not being able to license your project.
- dathinab 5y ago
  > they have to comply with the terms. They do but not doing so is a breach of contract not a copyright violation. What (at least in the US) makes it a copyright violation is the clause in the GPL contract which causes a automatic termination, and in turn makes you end up without a (previously existing but breached) contract granting you usage rights. Which then can be used to sue you based on copyright law. But everything which causes the then not to be reached causes you not to be able to sue based on copyright but only based on breach of contract. Through in practice this kinda could make a lot of copyright/licensing a joke (not just for software, but also e.g. art, movies etc.).
hnfong 5y ago
Heh, and I get down voted here when I comment that the GPL is probably a contract... Oh well, I don't have a Harvard law degree so what do I know
- dathinab 5y ago
  You got down voted for sarcasm in a way people don't like and missing context, through yes GPL is a contract and you don't sue for GPL violations in front of the copyright curt but for people not having a license as the GPL contract was automatically terminated due to violations. (As far as I know).
anovikov 5y ago
And these people will go around asking why there is so little good software built in EU and why is funding for startups so scarce.
- dathinab 5y ago
  France is not the EU. France law applies in France, not any other EU country. Rulings likely would have been very different in many of the other EU countries.
- goodpoint 5y ago
  On the contrary, the majority of FLOSS is developed in EU.
george_ciobanu 5y ago
https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc. Has some intersection with this case
Ericson2314 5y ago
W.R.T. Copyright assignment the FSF constantly complains "we've hired the lawyers and done the work, you all need to tread more carefully", but situations like this do seem to undermine that.
bdauvergne 5y ago
Hi, I'm one of the author of Lasso and the current maintainer, still working at Entr'ouvert. Ask me anything :)
- user5994461 5y ago
  Do you know if the company appealed to the cour de cassation?
  - bdauvergne 5y ago
    Yes, we started the process.
- temac 5y ago
  Couldn't it be argued that it is unfair for that to be required to be qualified as a breach of contract rather than "copyright" (droit d'auteur) violation if anybody can "contract" with you without even you being notified about it? Or would that qualification actually be not that much interesting and it is "just" a matter of knowing that in France you must sue for contract violation in case of GPL violation?
  - bdauvergne 5y ago
    > Couldn't it be argued that it is unfair for that to be required to be qualified as a breach of contract rather than "copyright" (droit d'auteur) violation if anybody can "contract" with you without even you being notified about it? I don't know. > Or would that qualification actually be not that much interesting and it is "just" a matter of knowing that in France you must sue for contract violation in case of GPL violation? I prefer this question. As stated by the blog author, counterfeiting gives more protection and ensure greater reparation than the contractual way. That's were the "cour d'appel" did not respect the opinion of the CJUE in our opinion. The contractual way does not give the same protections as the counterfeiting way, contrary to what the UE directive asks of the transposition into national laws.
phendrenad2 5y ago
So in France, GPL violations are not considered a copyright issue, they're considered a breach of contract. And since the court looks at the damage to the victim in breach of contract cases, which is hard to realistically imagine when the software is given away for free, this is some bad news indeed. Someone uses your GPL code, gets caught, pays a minimal amount in damages, and continues using it. I'm not a lawyer and stuff.
- dathinab 5y ago
  > So in France, GPL violations are not considered a copyright issue, they're considered a breach of contract. They are breach of contract in probably any country, but due to a automatic termination clause the breach of contract immediately leads to a copyright violation as you no-longer have usage rights as they where terminated. So it's always a breach of contract but in the US that breach of contract triggers a copyright violation where in France in that specific case it did not. > to realistically imagine when the software is given away for free, this is some bad news indeed. The software is free under certain terms, so you would need to find a realistic price for software without such terms. Which might be hard for a small ad-hoc library, but should be very doable for any larger software project. > , and continues using it. This wouldn't work they would pay some amount of damages (see above) for their usage until then, but you also can terminate their contract and in turn they would need to stop using it or (as far as I understand) they then (and not before) could be sued for copyright violation.
- R0b0t1 5y ago
  One of the strengths of the GPL is that companies don't like it for some reason. Since they don't like it, you can offer to sell them different licensing terms. That is what the damages are. It's not $0, it's all the money you missed out on from not being able to license your project.
foxfluff 5y ago
"That is to conclude, by having a contract (a license is a contract), you lose your rights to pursue any IP/copyright claims (the two are exclusive in French law)." So hold on.. Virtually all software comes with a license of some sort. This seems to be required in EU since otherwise you don't have the right to use software. And now courts in France think that if there's a license (=contract) involved, then copyright cases are dismissed. Does that mean I can wipe my butt with the French equivalent of copyright law (Droit d'auteur), as far as software is concerned?
- kergonath 5y ago
  Only if the software does not have a license. It does not mean that copyright does not exist; it’s just one or the other.
Luker88 5y ago
This might be a very big thing for other reasons too ...What does this imply for projects like Github's Copilot?
wazoox 5y ago
The very important point that a jurist friend noticed: there were past or current contracts between Orange and Entr'ouvert. Extract from the appeal judgment: "However, it appears from the elements submitted to the proceedings that as early as 2004, the parties maintained business relations, during which the Orange company very quickly showed its interest in LASSO by requesting various information/trainings and services on this software." Training + Services = contracts. So the judgement actually makes complete sense. (Original text: “Or, il ressort des éléments versés à la procédure que dès 2004, les parties ont entretenu des relations d’affaires, à l’occasion desquelles la société Orange a très vite montré son intérêt pour LASSO en sollicitant divers renseignements/formations et prestations sur ce logiciel.”)

297 points by user5994461 5y ago

Full title too long for HN "French Appeal Court affirms decision that copyright claims on GPL are invalid; must be enforced via contractual dispute" There was a brief HN discussion on the initial ruling 2 years ago https://news.ycombinator.com/item?id=24478769 https://news.ycombinator.com/item?id=24478769 the case just went to appeal earlier this year. Note that the last HN discussion never really happened, it gathered both too many votes and flags in 20 minutes and got automatically hidden, only to be unblocked by a mod later. It would be great if you could refrain from flagging this time, even if the ruling comes as a culture shock to you. I assure you it is not clickbait. The authors of GPL software are really spending years and a fortune in court only to have all their copyright claims dismissed. The ruling passed the High Court (TGI), the Appeal Court and the CJUE.

andi999 5y ago
Did they ask the FSF to chip in?
- user5994461 5y ago
  What for? What's the relevance of the FSF here? Well, if you really want an anecdote with the FSF. I happen to have one :D The court used the French GPL translation from the FSF. The very translations saying that they are not official translations and cannot be used in court. Well, the FSF doesn't get to decide what's admissible in court. https://www.gnu.org/licenses/translations.en.html https://www.gnu.org/licenses/translations.en.html
  - phaemon 5y ago
    That page doesn't say it can't be used in court. In fact, the word "court" doesn't even appear on the page. Do you have an anecdote that isn't a lie?
    - simiones 5y ago
      The page is very clear that it only considers the English document to constitute the real contract, and all translations as helpers, not as legal documents: > The FSF does not approve license translations as officially valid. The reason is that checking them would be difficult and expensive (needing the help of bilingual lawyers in other countries). Even worse, if an error did slip through, the results could be disastrous for the whole free software community. As long as the translations are unofficial, they can't do any legal harm. > ... > We give permission to publish translations of GNU licenses into other languages, provided that: > You label your translation as unofficial to inform people that they do not count legally as substitutes for the authentic version (see below for how to do this).
      - phaemon 5y ago
        Yes, that is what it says. Not "cannot be used in court". Just that they consider the English version authoritative. Are you trying to tell me you can't tell the difference between these statements?
        kbenson 5y ago
        do not count legally as substitutes for the authentic version isn't the exact same wording, but I don't think it's a leap to go from "this is not a legal document" to "this is not to be used in court" when referring specifically to contracts and licenses. It's at least no more of a leap than telling someone they're lying when they're paraphrasing, and in a way many people think is fairly accurate.
        phaemon 5y ago
        Ok, I didn't realize anyone would really think that only legal documents could be used in court. It seems an utterly bizarre idea to me. Did you think that an eyewitness account of a murder would be inadmissible because it's not a legal document?
  - xxpor 5y ago
    That's not that unusual. If you have a contract written in something other than English and it ended up in a US court, the court would probably look at this translation and essentially be like, well, even though it says that it was translated by a non-party to this case and there's no reason to believe it's intentionally mistranslated, so good enough. Especially if the parties to the dispute didn't have any objections.

JPLeRouzic 5y ago

> Orange Business Service used the library when developing a nationwide authentication service for France since 2005 (mon service public). I was at France Telecom R&D in a team working in authentication, and remember clearly admiring the work of entre'ouvert. At the time, I tested Lasso [0] on my own computer but never used it in real projects. Colleagues also found it very interesting. I tested many similar open source framework, such as SimpleSamlPhP which we used (and give credit) in a European research project. There was also a US company making an authentication framework in Java. > My guess is a government contract like can go for 7 to low 8 figures. That's as far as possible to the reality. The French state is constantly broke, for example it argued of IT problems to delay military staff pay by several month and delay providers payment by a year (Louvois), while making a law that forbids the private sector to delay payments more than two months! It asked to Orange to work for free on many topics and it probably did the same at other big companies. Never do business with the French state! [0] https://lasso.entrouvert.org/ https://lasso.entrouvert.org/

derefr 5y ago
> The French state is constantly broke Is this an EU “we can’t set our own monetary policy, we have to ask the ECB nicely to do it for us” thing? Because the idea of a state [of a country whose populace are not, themselves, in an economic crisis] being unable to just make up some money to give people (in the form of e.g. T-bonds), sounds very strange to my ears—almost harkening back to a gold-standard era, where states that couldn’t find precious metals to dig out of the ground could run out of raw materials to mint new coinage out of. Is it just that French treasury bonds aren’t valued at at-least-par on the market? Is the government of France a bad/risky investment in the eyes of mutual-fund portfolio managers, something not to base the stable part of their portfolios around? (If so, what do French portfolio-managers use as stability? Other governments’ T-bonds?) (HN is probably not the place to get into an answer of the level of detail appropriate to these questions, so I’d appreciate links to resources answering them!)
- jcelerier 5y ago
  > Because the idea of a state [of a country whose populace are not, themselves, in an economic crisis] being unable to just make up some money to give people but, it's a debt, it increases how broke is the state (in France it's super super badly seen to have any debt, even if financially it is considered an asset, socially the word "debt" is considered as an absolute evil)

belval 5y ago

This is an interesting yet very frustrating read. Every few weeks we see a post on HN about an MIT-licensed project that gets picked up by AWS or Azure and the general response is "should've been GPL". This case right here highlights that in France that doesn't work either. Their equivalent of AT&T used GPL software (admitted to it) but claims that it's a contract issue and not a copyright one so the case gets thrown out.

unmole 5y ago
GPL doesn't force you to release your changes to the outside world if you don't distribute it.
- eqvinox 5y ago
  Indeed, that's what the AGPL is for.
  - enigma-reload3d 5y ago
    despite the general hate against SSPL from mongo has, it's more powerful than agpl
  - tsimionescu 5y ago
    AGPL only changes things if you give access to your software over the internet. If you're just using the software internally (e.g. it's used in the corporate SSO solution for access to an internal wiki) than no OSS license will force you to publish the code. Furthermore, if I contract a company to build a service which I will run internally, and they use (A)GPL software in this service that they are building for my internal use, neither I nor the company probably have any requirement to publish the source code to anyone, perhaps except that the contractor may have to provide me with the source code if this was not otherwise stipulated. But you don't have any right to see the code that they modified for me, even if you are the initial author of that code.
    - R0b0t1 5y ago

math-dev 5y ago

A (incomplete) Tl;DR: The strategy that is well tried in the US is to go for counterfeiting/copyright, to seek the most damages. Copyright/IP law can carry significantly more damages, both in France and in the US, compared to a contractual dispute. (Remember that it’s all about money!) For an IP violation, the court typically looks at the gain of the counterfeiter. That may be winning and executing the government contracts for Orange. My guess is a government contract like that can go for 7 to low 8 figures. For a contractual violation, the court typically looks at the loss of the victim. That may be some licensing fees and contracting fees for Entr’Ouvert. My guess is a library like that can go for 6 figures, while the bigger player selling OIDC/SAML solutions (Sun, ForgeRock, Oracle, Microsoft) go for an amount per user per year, easily adding up to 7 figures (but I don’t think that one standalone library from a small vendor in 2003 can do that). Entr’Ouvert followed the counterfeiting strategy, they sued for counterfeiting and got dismissed. (I should stress out that it was a very reasonable strategy, similar law exist, it should have worked, it just didn’t).

horsawlarway 5y ago

As an American reading through this, this has a distinct smell of French courts ruling in ways favorable to the national ISP because it might cost the government money to do otherwise. Basically - this looks pretty bad from my perspective. Anyone with more context who can explain how copyright could exist in France if all licenses are considered contracts instead?

Thomashuet 5y ago
The other side (Entr’Ouvert) is also French. I don't see how you can think this is a case of France against not France.
- imwillofficial 5y ago
  One is a national asset and one isn’t? (Perhaps I’m wrong)
- edoceo 5y ago
  Nobody thinks it's France v !France. Its big national corp (Orange) vs a little guy. The court sided with the BigCo. That's the issue.
  - bpodgursky 5y ago
    Yeah, if Orange was willing to do this once, the chances are that their tech stack would be swiss cheese if they had to excise all the GPL-licensed tech they are using without rights. The precedent is more important to them than the $3mm.
polote 5y ago
> to the national ISP It is the previous national ISP. I'm not even sure it has ever been a private ISP. It's completely private now [0] (but still owned at 30% by the government) and they have three big competitors: SFR, Iliad, Bouygues [0] https://www.google.com/search?client=firefox-b-d&q=EPA:+ORA https://www.google.com/search?client=firefox-b-d&q=EPA:+ORA
5y ago

eqvinox 5y ago

FYI / "FHNI": The GPL also has issues in Taiwan, apparently because it's illegal there to enforce its constraints on anything but the first user / immediate level. Or something like that — not a lawyer here. Found this paper on the topic: http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf But honestly I don't understand too much of it. Either way if France joins Taiwan, that sure isn't a good thing for people relying on the GPL, but it won't break its back either. Some "industry of opportunity" may spring up (it definitely has in Taiwan), but it's not the end of the world.

fartcannon 5y ago
If the enforcement body is corrupt, no licence will stand.
snovv_crash 5y ago
You can still pursue GPL violations in France, it just has to be framed as contract violations rather than copyright violations.
- dathinab 5y ago
  Depending on the context you probably still could frame it as a copyright violations. My guess is that the problems lies in the aspects of the automatic termination of the contract not being valid in France law in exactly that way. I.e. it being "in between" valid and invalid until the court case around the termination is settled and in turn it means there is still a (breached) contract or similar. If that is the case you might be able to avoid this problem by making sure the contract is properly and explicitly terminated before you start suing, but it also requires the offender to continue using your software after you explicitly terminated the contract. I.e. you couldn't do it in retrospective, and it probably also would be a problem if there is a ongoing curt case for damages due to the breach of contract...
PixelOfDeath 5y ago
> The GPL also has issues in Taiwan, apparently because it's illegal there to enforce its constraints on anything but the first user / immediate level. NEW! License restriction free Linux source code for only $ 9.95 ! Only used once! ORDER NOW!

myWindoonn 5y ago

It's too bad that AGPL wouldn't have been more effective; this seems like a dead end for copyright-based copyleft in France. We'll have to make extra effort to phrase things in terms of contract-based copyleft. Although, doesn't this suggest a meeting of the minds? Free Software is usually proffered and consumed without such a meeting. So was a contract actually formed? I'm skeptical.

twooster 5y ago

Would this be fixable by adjusting, somewhat, the terms of the GPL? If the issue is that this is a contractual violation, would it be possible to put preconditions before granting a license in the first place -- such as requiring that legal claims for both copyright violation _and_ contractual violation are explicitly allowed before the license is granted?

deleted 5y ago
[deleted]
bluGill 5y ago
This case has both parties in France so the courts will probably rule that the license was made in bad faith since it isn't valid in France, I have no idea what the court will do after that. (in the US the courts will look down on a license made in bad faith, I have no idea about France)
- deleted 5y ago
  [deleted]
user5994461 5y ago
The license already has preconditions. That's part of the problem. To determine whether there is a violation (copyright or anything), it first requires to determine whether the conditions are respected, which first requires to determine what are the conditions, which first requires to interpret the entire contract to determine the obligations and conditions and everything on both parties. In software terms, you've got a deadlock, can't consider copyright without considering the contract. (This plays really poorly in practice with these being different claims going to different courts).
- twooster 5y ago
  It seems to me that if, e.g., mandatory arbitration clauses can be binding, then so could a precondition clause allowing particular types of torts (or disallowing particular types of defenses). I imagine it wouldn't be too hard to convince a judge that engaging in a defense explicitly disallowed by the contract in dispute isn't fair play. I guess the question is whether you can have preconditions at all on blanket licenses? For example, if I say "anyone who sends me, by registered mail, a check for 50 EUR will be granted a license", and someone just uses my code without even attempting to send the check, is that copyright violation or contractual violation? It seems to me that would be a copyright violation, or else all copyright violations are just latent contract violations, in their most absurd extents ("I didn't sign the licensing contract they offered, but because they offered one at all, it's a contractual violation" seems to be a particularly weak defense).

Mikeb85 5y ago

I'm just curious how anyone figures this example is a GPL violation? The GPL states (and Stallman has discussed and stated) that if an organization uses GPL code internally and never redistributes the code outside the organization, it's perfectly fine. Which seems to be this case. So why does anyone think it's a violation and what's the point of this article? Edit - also, the GPL is clearly a contract. Stallman has touched on copyright issues too, saying (for example) that a game can be open source but the assets still copyrighted. They're different concepts altogether.

mzs 5y ago
I thought Orange Business Services sold it to the French gov, did they not?
- zozbot234 5y ago
  Did they sell the software to the French gov, or deploy a managed service that only used this software under the hood (thus avoiding even the "public performance" part of copyright, that might otherwise apply to a SaaS deployment)? The distinction is quite critical to this case, if they did the latter it's no different than Amazon doing the same thing.
- Mikeb85 5y ago
  Using it for a service still isn't 'redistribution' as per the GPL. It still wouldn't be considered to have left the organization. It's perfectly fine use as per the GPL. And if it's the French government who contracted the whole thing, they're the original owner, not Orange, but either way it's fine (an owner giving access to a contractor to work on a program containing GPL code isn't considered redistribution either, nor is a contractor using open-source code in a project for a client). Edit - also even if Orange used it internally, then made the French government a service which uses it, as long as Orange simply re-sourced the code for the government it's fine. It's like Amazon selling hosted Linux images.
  - user5994461 5y ago

jeroenhd 5y ago

What I think is the real meat of the story: > That is to conclude, by having a contract (a license is a contract), you lose your rights to pursue any IP/copyright claims (the two are exclusive in French law). GPL was written by lawyers for the American system of law and France is not part of the USA. The systems of law are different and therefore the implications of GPL-licensing code are different. I'd be very surprised if France is the only country that treats software licenses like this. The basis of the USA system of law is completely different from even other European courts, let alone non-Western systems of law. Assuming you can write a license for use in the USA and enforce it the world around is quite foolish.

jlos 5y ago
Should've gotten some Canadian lawyers involved in GPL. Due to the combined heritage of English and French (Quebec) Canada has both Civil law (French) and Common Law (English).
- elliekelly 5y ago
  I believe Louisiana uses a combination of civil and common law as well for the same reason.
- jibcage 5y ago
  As I understand it, Louisiana is a civil law state as well: https://www.bloomlegal.com/blog/what-is-unique-about-louisiana-law/ https://www.bloomlegal.com/blog/what-is-unique-about-louisia...
- retrac 5y ago
  While this is a true factoid, civil law in Canada is restricted to Quebec, and is ultimately subordinate to the constitution, which is interpreted in a nearly identical manner to American law, in the common law style. The civil law influence is mostly restricted to Quebec in areas of provincial jurisdiction (family law, small claims, etc.) The Copyright Act is federal and would get the common law handling. (Approximately the same situation is true in the USA with Louisiana, whose state laws also have a form inherited or at least strongly influenced by the Napoleonic code, ultimately, but since harmonized to fit into a common law system.)

blueblisters 5y ago

My understanding of the case as a legal noob: 1) The defendant was not willing to redistribute the source-code it and hence they were sued for violation of GPL from the owner of the software under copyright law. 2) French court did not recognize the validity of software licenses to be enforced under French copyright law. Does that mean GPL and all similar free licenses that rely on copyright law cannot be enforced in similar jurisdictions? Does anyone have a list of countries/jurisdictions where a similar ruling is likely to happen? What alternatives exist for free software in those countries?

bluGill 5y ago
> Does that mean GPL and all similar free licenses that rely on copyright law cannot be enforced in similar jurisdictions You missed one important point 3) The French court said take this is for the contracts courts, take it to them - something that hasn't happened yet. The contract courts have not ruled (this hasn't even been brought to them from what I can tell) on this case at all, but probably would find in favor of the GPL. The GPL probably can be enforced in France, but it is a contract violation not a copyright violation which apparently the FSF doesn't like. (I'm not clear on why - possibly because the court award would be much less)
- lukeschlather 5y ago
  The FSF is not mentioned in this article, nor are they the author of the article. I was surprised when the author wrote "Remember that it’s all about money!" because that is never what the FSF says - in fact the FSF whenever they sue they always say "We don't care about money, we want you to comply with the terms of the GPL."
  - bluGill 5y ago
    Good point. Though the courts might disagree and decide it is about money anyway. I have no idea how France will handle this - nor any of the other countries in the world.
dathinab 5y ago

Tobu 5y ago

Interestingly, in another decision, that did go as high as the Cour de Cassation, Microsoft did get a license violation treated as counterfeiting, with higher monetary damages. - https://www.legalis.net/jurisprudences/cour-de-cassation-ch-criminelle-arret-du-19-avril-2017/ - https://www.legalis.net/actualite/contrefacon-de-windows-confirmation-du-mode-de-calcul-de-la-reparation/ Found via https://linuxfr.org/users/spacefox/journaux/une-violation-de-licence-est-une-rupture-de-contrat-et-pas-une-contrefacon-en-france https://linuxfr.org/users/spacefox/journaux/une-violation-de... More here on the Entr'ouvert vs Orange case: - https://www.legalis.net/jurisprudences/cour-dappel-de-paris-pole-5-ch-2-arret-du-19-mars-2021/ - https://www.legalis.net/actualite/pas-daction-en-contrefacon-pour-le-non-respect-dune-licence-de-logiciel/ - https://www.legalis.net/jurisprudences/tgi-de-paris-3eme-ch-3eme-section-jugement-du-21-juin-2019/ - https://www.legalis.net/actualite/non-respect-dune-licence-libre-irrecevabilite-de-laction-en-contrefacon/

6gvONxR4sf7o 5y ago
FYI when you format links that way, they aren’t clickable. I think it’s because you’re indenting them which makes them parse as code.
- db48x 5y ago
  It’s really a lot of work, but if you select one and right–click on it, then you can choose to open it in a new tab/window/etc.
- poetaster 5y ago
  Um, not reading in a web browser. No mouse.
user5994461 5y ago
Interesting case https://www.legalis.net/jurisprudences/cour-de-cassation-ch-criminelle-arret-du-19-avril-2017/ https://www.legalis.net/jurisprudences/cour-de-cassation-ch-... Looks like it's about someone selling Windows, without paying Microsoft and/or without having a reseller partnership with Microsoft. The article is sadly very short and lacking any details. There is no contract involved depending on the circumstances.

yorwba 5y ago

This article has me confused about the legal status of licenses in US copyright law. Are they not contracts? I mean, the GPL promises the recipient something (the right to make copies of a software) in return for something else (the source code for any modifications). That smells like a contract to me.

unnah 5y ago
It seems that unlike in civil law countries, in common law countries such as the UK and US, a license is a separate legal category from a contract. A license can be interpreted as a contract as well, but you can make a "bare license" that is simply a grant of permission and not a contract all. In civil law countries such as continental Europe, all copyright licenses are interpreted as contracts. My understanding is based on this LWN article summarizing the opinions of several legal experts on the subject: https://lwn.net/Articles/747563/ https://lwn.net/Articles/747563/
- deleted 5y ago
  [deleted]
user5994461 5y ago
How about I make a second article to explain licenses vs contracts in US and the rest of the world? Your question went to US court in 2017. I wanted to cover that briefly but the blog is already quite long without getting into more specifics about licenses in the US.

jrm4 5y ago

Aha. Okay. So (even if you're super pro Free Software like me) this doesn't seem all that bad, I think -- the error was the small guys "going for the money," but the GPL was never much about money, it's about compliance with the license. Does this seem right? (Yeah, I am a lawyer, but also not French)

black_puppydog 5y ago
I agree that the goal is to get people (actually mostly businesses) to comply with the license, but that is sadly tied to what the consequences are if you are found to be in violation. The requirement go through contract violation instead of counterfeit will in practice drastically reduce these costs, and thus the incentives for compliance, while at the same time reducing the incentive of the authors to even try defending their rights.
- jrm4 5y ago
  It can be, but as I recall, the crux of the whole router WRT story was the FSF or whoever called up Linksys and said, "You're in violation, but calm down, we don't want money. Let's talk." -- and that is why we have e.g. DD-WRT, Tomato et al today.
6gvONxR4sf7o 5y ago
If you want to get compliance and legal cases take a decade, then damages need to cover a decade of lawyers, plus however much internal time/cost you spend on it over that decade.

homarp 5y ago

https://en.m.wikipedia.org/wiki/CeCILL https://en.m.wikipedia.org/wiki/CeCILL CeCILL (from CEA CNRS INRIA Logiciel Libre) is a free software license adapted to both international and French legal matters, in the spirit of and retaining compatibility with the GNU General Public License (GPL).

resplin 5y ago
In my opinion, the EU Public License is the most carefully thought out FLOSS license for European jurisdictions. https://en.m.wikipedia.org/wiki/European_Union_Public_Licence https://en.m.wikipedia.org/wiki/European_Union_Public_Licenc...
bdauvergne 5y ago
Enforcing CeCILL in France on the same case would give the same result, if the court use the same interpretation of the law. That's not a problem with the license, it's a problem of the interpretation of copyright law (or "Droit d'auteur") in France with respect to copyleft license (any copyleft license with serious "obligations" to honor, so not BSD and alike, would give the same result).

not2b 5y ago

Of course IANAL (je ne suis pas avocat). But in the end it may not matter. While GPL2 says "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works", if a French court decides that if someone modifies and distributes a GPL covered work an enforceable contract is formed, it seems that the effect is the same: they have to comply with the terms.

denton-scratch 5y ago
It does matter: you can no longer sue for copyright violation, you can only sue for contract violation. If you violate a contract, the court will order compensation calculated to "make you whole" again - to restore things to how they would have been before the contract was executed The author seems to think there may be some issue for a writer of free software to demonstrate that he had been harmed by the violation; which wouldn't be an issue in a copyright suit. Well, at least here, copyright violation carries statutory damages. IANAL.
- R0b0t1 5y ago
  One of the strengths of the GPL is that companies don't like it for some reason. Since they don't like it, you can offer to sell them different licensing terms. That is what the damages are. It's not $0, it's all the money you missed out on from not being able to license your project.
dathinab 5y ago
> they have to comply with the terms. They do but not doing so is a breach of contract not a copyright violation. What (at least in the US) makes it a copyright violation is the clause in the GPL contract which causes a automatic termination, and in turn makes you end up without a (previously existing but breached) contract granting you usage rights. Which then can be used to sue you based on copyright law. But everything which causes the then not to be reached causes you not to be able to sue based on copyright but only based on breach of contract. Through in practice this kinda could make a lot of copyright/licensing a joke (not just for software, but also e.g. art, movies etc.).

hnfong 5y ago

Heh, and I get down voted here when I comment that the GPL is probably a contract... Oh well, I don't have a Harvard law degree so what do I know

dathinab 5y ago
You got down voted for sarcasm in a way people don't like and missing context, through yes GPL is a contract and you don't sue for GPL violations in front of the copyright curt but for people not having a license as the GPL contract was automatically terminated due to violations. (As far as I know).

anovikov 5y ago

And these people will go around asking why there is so little good software built in EU and why is funding for startups so scarce.

dathinab 5y ago
France is not the EU. France law applies in France, not any other EU country. Rulings likely would have been very different in many of the other EU countries.
goodpoint 5y ago
On the contrary, the majority of FLOSS is developed in EU.

george_ciobanu 5y ago

https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc. Has some intersection with this case

Ericson2314 5y ago

W.R.T. Copyright assignment the FSF constantly complains "we've hired the lawyers and done the work, you all need to tread more carefully", but situations like this do seem to undermine that.

bdauvergne 5y ago

Hi, I'm one of the author of Lasso and the current maintainer, still working at Entr'ouvert. Ask me anything :)

user5994461 5y ago
Do you know if the company appealed to the cour de cassation?
- bdauvergne 5y ago
  Yes, we started the process.
temac 5y ago
Couldn't it be argued that it is unfair for that to be required to be qualified as a breach of contract rather than "copyright" (droit d'auteur) violation if anybody can "contract" with you without even you being notified about it? Or would that qualification actually be not that much interesting and it is "just" a matter of knowing that in France you must sue for contract violation in case of GPL violation?
- bdauvergne 5y ago
  > Couldn't it be argued that it is unfair for that to be required to be qualified as a breach of contract rather than "copyright" (droit d'auteur) violation if anybody can "contract" with you without even you being notified about it? I don't know. > Or would that qualification actually be not that much interesting and it is "just" a matter of knowing that in France you must sue for contract violation in case of GPL violation? I prefer this question. As stated by the blog author, counterfeiting gives more protection and ensure greater reparation than the contractual way. That's were the "cour d'appel" did not respect the opinion of the CJUE in our opinion. The contractual way does not give the same protections as the counterfeiting way, contrary to what the UE directive asks of the transposition into national laws.

phendrenad2 5y ago

So in France, GPL violations are not considered a copyright issue, they're considered a breach of contract. And since the court looks at the damage to the victim in breach of contract cases, which is hard to realistically imagine when the software is given away for free, this is some bad news indeed. Someone uses your GPL code, gets caught, pays a minimal amount in damages, and continues using it. I'm not a lawyer and stuff.

dathinab 5y ago
> So in France, GPL violations are not considered a copyright issue, they're considered a breach of contract. They are breach of contract in probably any country, but due to a automatic termination clause the breach of contract immediately leads to a copyright violation as you no-longer have usage rights as they where terminated. So it's always a breach of contract but in the US that breach of contract triggers a copyright violation where in France in that specific case it did not. > to realistically imagine when the software is given away for free, this is some bad news indeed. The software is free under certain terms, so you would need to find a realistic price for software without such terms. Which might be hard for a small ad-hoc library, but should be very doable for any larger software project. > , and continues using it. This wouldn't work they would pay some amount of damages (see above) for their usage until then, but you also can terminate their contract and in turn they would need to stop using it or (as far as I understand) they then (and not before) could be sued for copyright violation.
R0b0t1 5y ago
One of the strengths of the GPL is that companies don't like it for some reason. Since they don't like it, you can offer to sell them different licensing terms. That is what the damages are. It's not $0, it's all the money you missed out on from not being able to license your project.

foxfluff 5y ago

"That is to conclude, by having a contract (a license is a contract), you lose your rights to pursue any IP/copyright claims (the two are exclusive in French law)." So hold on.. Virtually all software comes with a license of some sort. This seems to be required in EU since otherwise you don't have the right to use software. And now courts in France think that if there's a license (=contract) involved, then copyright cases are dismissed. Does that mean I can wipe my butt with the French equivalent of copyright law (Droit d'auteur), as far as software is concerned?

kergonath 5y ago
Only if the software does not have a license. It does not mean that copyright does not exist; it’s just one or the other.

Luker88 5y ago

This might be a very big thing for other reasons too ...What does this imply for projects like Github's Copilot?

wazoox 5y ago

The very important point that a jurist friend noticed: there were past or current contracts between Orange and Entr'ouvert. Extract from the appeal judgment: "However, it appears from the elements submitted to the proceedings that as early as 2004, the parties maintained business relations, during which the Orange company very quickly showed its interest in LASSO by requesting various information/trainings and services on this software." Training + Services = contracts. So the judgement actually makes complete sense. (Original text: “Or, il ressort des éléments versés à la procédure que dès 2004, les parties ont entretenu des relations d’affaires, à l’occasion desquelles la société Orange a très vite montré son intérêt pour LASSO en sollicitant divers renseignements/formations et prestations sur ce logiciel.”)