Full title too long for HN "French Appeal Court affirms decision that copyright claims on GPL are invalid; must be enforced via contractual dispute"<p>There was a brief HN discussion on the initial ruling 2 years ago <a href="https://news.ycombinator.com/item?id=24478769" rel="nofollow">https://news.ycombinator.com/item?id=24478769</a> the case just went to appeal earlier this year.<p>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.<p>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.
What I think is the real meat of the story:<p>> 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).<p>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.<p>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.
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.<p><pre><code> - 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/
</code></pre>
Found via <a href="https://linuxfr.org/users/spacefox/journaux/une-violation-de-licence-est-une-rupture-de-contrat-et-pas-une-contrefacon-en-france" rel="nofollow">https://linuxfr.org/users/spacefox/journaux/une-violation-de...</a><p>More here on the Entr'ouvert vs Orange case:<p><pre><code> - 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/</code></pre>
> <i>Orange Business Service used the library when developing a nationwide authentication service for France since 2005 (mon service public)</i>.<p>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.<p>I tested many similar open source framework, such as SimpleSamlPhP which we used (and give credit) in a European research project.<p>There was also a US company making an authentication framework in Java.<p>> <i>My guess is a government contract like can go for 7 to low 8 figures.</i><p>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!<p>It asked to Orange to work for free on many topics and it probably did the same at other big companies.<p>Never do business with the French state!<p>[0] <a href="https://lasso.entrouvert.org/" rel="nofollow">https://lasso.entrouvert.org/</a>
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.<p>Found this paper on the topic:
<a href="http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf" rel="nofollow">http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf</a>
But honestly I don't understand too much of it.<p>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.
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?<p>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.
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.
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.<p>I'm not a lawyer and stuff.
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.<p>Does this seem right? (Yeah, I am a lawyer, but also not French)
<a href="https://en.m.wikipedia.org/wiki/CeCILL" rel="nofollow">https://en.m.wikipedia.org/wiki/CeCILL</a> 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).
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?
My understanding of the case as a legal noob:<p>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.<p>2) French court did not recognize the validity of software licenses to be enforced under French copyright law.<p>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?
"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)."<p>So hold on..<p>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.<p>And now courts in France think that if there's a license (=contract) involved, then copyright cases are dismissed.<p>Does that mean I can wipe my butt with the French equivalent of copyright law (Droit d'auteur), as far as software is concerned?
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.<p>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.
The very important point that a jurist friend noticed: there were past or current contracts between Orange and Entr'ouvert.<p>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."<p>Training + Services = contracts. So the judgement actually makes complete sense.<p>(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.”)
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.
A (incomplete) Tl;DR:<p>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!)<p>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.<p>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).<p>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).
<a href="https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc" rel="nofollow">https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc</a>.<p>Has some intersection with this case
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.<p>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.
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.
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.<p>Basically - this looks pretty bad from my perspective.<p>Anyone with more context who can explain how copyright could exist in France if all licenses are considered contracts instead?
Heh, and I get down voted here when I comment that the GPL is probably a contract...<p>Oh well, I don't have a Harvard law degree so what do I know