French judge rules GPL license to be inapplicable in French copyright court

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TL;DR Landmark case Entr’ouvert vs Orange, after 9 years of like minded fight, the copyright court docket (TGI Paris) found the GPL license to be inapplicable and pushed apart the case.

Read the judgment as, since there may perhaps be nothing that this court docket can take into myth here, there may perhaps be nothing that will per chance even be achieved but fall the case. Events may perhaps perhaps sue again on one other foundation (contract dispute rather then copyright) in a single other court docket.

We’re going to show the case, the events, the parts, the judgment. With a few extra explanation on the French like minded gadget and Intellecual Property (IP) law.

The Case

Events and objects:

  • Entr’ouvert: A tool firm in France increasing tool, specialized in identification and gather trusty of entry to management.
  • Orange (previously France Telecom): A brilliant telecom operator in France (corresponding to British Telecom for British readers).
  • Orange Application for Industrial / Orange Industrial Providers and products: An IT service and consulting firm, inch-off from Orange (corresponding to Accenture/IBM/Tata).
  • ADAE: An administrative company from the French govt.
  • Mon Carrier public: A single-label on portal to gather trusty of entry to French public products and companies (taxes, advantages, and so forth…).

We’ll have the option to summarize Orange as Orange, the subject at hand isn’t any longer how the conglomerate is structured.

We’ll have the option to summarize the govt. companies because the French govt.

Events:

  • Entr’ouvert created the tool Lasso, a library for SAML authentication, first version released on 23 Mars 2004.
  • Lasso is disbursed below GPL.
  • Orange won a project expose to personal an identification portal for the french govt in 2005.
  • The portal operated from 2009 to 2016 (retired) the utilization of Lasso.
  • Entre’ouvert sued Orange in 2011 for counterfeiting, on copyright grounds (psychological property).
  • A forensic report changed into once ordered and took 3 or 4 years to total.
  • The case changed into once judged in court docket in 2019. Brushed apart.

Judgment:

The case is pushed apart. The overall requires and claims are pushed apart.

Entr’ouvert has to quilt its dangle forensic charges and pay 14000 Euros charges to Orange to quilt their charges.

Verdict and Translation

French (scroll down for English)

“””

Il apparaît ainsi que la société Entr’ouvert poursuit en réalité la réparation d’un dommage généré par l’inexécution par les sociétés défenderesses d’responsibilities résultant de la licence[,] et non pas la violation d’une responsibility extérieure au contrat de licence.

La solution du litige requiert l’interprétation de la licence libre, régissant les rapports entre les events en cause pour établir la légalité ou l’illégalité du comportement reproché.

La relation entre la société Entr’ouvert et les sociétés Orange pour l’utilisation de la licence est donc de nature contractuelle.

En application du principe de non-cumul de responsabilité, seul le fondement de la responsabilité contractuelle est prone d’être invoqué par la demanderesse, qui doit donc être déclarée irrecevable en son motion en contrefaçon et en ses prétentions accessoires, fondées exclusivement sur la responsabilité délictuelle, sans que la société Entr’ouvert ne puisse invoquer “la résolution immédiate” et rétroactive de la licence, sanction au demeurant propre à la matière contractuelle.

“””

English Translation:

“””

It looks that the firm Entr’ouvert is searching for reparations from hurt triggered by the non-execution by the defendant companies of their responsibilities imparted by the license[,] no longer for violation of an exterior responsibility from the license contract.

The option of the case requires to give an explanation for the free license [GPL], governing relatives between the events, to place the legality or illegality of the behaviors.

The relation between the firm Entr’ouvert and the firm Orange on the utilization of the license is thus contractual.

As per the precept of non-cumulative duties [sic], easiest contract law [responsabilite contractuelle] may perhaps perhaps be invoked by the plaintiff, who must be ruled to be irreceivalble in its motion for spurious (copyright) and its requires, primarily based mostly mostly on tort law [responsabilite civile]. […]

“””

Another phase for context:

“””

En application des inclinations de l’article L122-6 du code de la propriété intellectuelle, les actes liés au droit d’exploitation du logiciel, tels que “le droit d’effectuer et d’autoriser : 1/ la replica permanente ou provisoire du logiciel (…) ; 2/ la traduction, l’adaptation l’affiliation ou toute autre modification et la replica du logiciel”, sont expressément réservés par la loi à l’auteur du logiciel et soumis à l’autorisation de celui-ci […]

La violation des droits réservés de l’auteur est sanctionnée par la contrefaçon (article L335-2 du code de la propriété intellectuelle).

Cependant “les modalités particulières d’utilization pour permettre l’utilisation du logiciel conformément à sa vacation enviornment, par la personne ayant le droit de l’utiliser” sont aménagées, selon l’alinéa 2 de l’article L122-6-1 du code de la propriété intellectuelle, par contrat entre les events.

En l’incidence la bibliothèque Lasso est mise à disposition dans le cadre d’une licence libre GNU GPL V.2, qui consiste pour le donneur de licence à autoriser un utilisateur, à exécuter, diffuser et modifier un logiciel, à payment pour celui-ci de respecter les prerequisites d’utilization prévues au contrat de licence correspondant.

“””

English Translation:

“””

As per article L122-6 of Intellectual Property […] ;rights to 1/ copy completely or temporarily 2/ translation, adjustment or affiliation or another modification and replica; are explicitly reserved by law to the author of the tool and subject to permission from them.

Violating rights reserved to the authors is punished by counterfeiting (article L335-2 of Intellectual Property) .

Alternatively “particular prerequisites to allow utilization of the tool in accordance to its vacation enviornment, by the person having the permission to teach it” are arranged, below paragraph 2 article L122-6-2 of psychological property rights, by contracts between events.

In this case, the library Lasso is given below a freedom [sic] license GNU GPL v.2, that consists into for the license grantor to authorize a user, to scoot, distribute and modify the tool, up to that user to state prerequisites acknowledged by the license contract.

“””

We must enact a piece of explanation on the ideas here.

US Guidelines and Copyright

Let’s talk US Copyright law, the build the GPL is created and supposed to gather sense.

The US is closely primarily based mostly mostly at some level of the idea that of a duplicate, if you dangle a duplicate of one thing, you possess got the liberty to teach it as you discover fit (“you may perhaps perhaps presumably be free to teach it”). Longer explanation here, possess a read.

In case you possess got a fork (the kitchen utensil) you may perhaps perhaps presumably enact no subject with that fork. In case you possess got a tool, you may perhaps perhaps presumably enact no subject with the tool.

In case you personal a [legitimate] copy of a tool you may perhaps perhaps presumably teach that copy as you desire. The analogy with a fork reveals its limitations here which implies that of a fork can no longer be duplicated advert infinitum. The trusty to manufacture copies and to present them is proscribed to the copyright holder. That’s the root of US tool license.

Appreciate one other read of the GPL license with that in options. Now you should to quiet realize why they are obsessive about copies and copying and making obvious the license is integrated verbatim with the copy. Also a splash why the law is called “COPYright” in English, “the finest to repeat”.

What occurs when things are copied without respecting the license?

US authors will sue for counterfeiting, below copyright. The copies may perhaps perhaps even be thought of counterfeits.

Unsuitable is a rather “solid” observe, deem serious damages and liabilities here. The celebration who created the copies may perhaps perhaps even be pursued for damages, damages for every copy created, while the final copies are illegal to teach.

The US like minded gadget has the idea that of license, among other things the license is a technique for the proprietor to permission other to teach and/or to repeat their tool.

Briefly, that’s about it.

International readers will hide that US companies purchase to deem that they easiest lend permission to teach a tool, no longer ownership of the tool or of a duplicate of the tool (discover wording in any EULA as an illustration), which is nonsense to the foreign reader. This misunderstanding stems from the US custom being deeply rooted round COPY (copying/copyright/and so forth), they in actual fact don’t desire the person to OWN a duplicate!

The US like minded programs also has contracts and contract law. Contracts and licenses being various. Won’t gather into more tiny print there but suffice to order that the license is widely aged to order copyright, no longer primarily as a contract (as other worldwide locations judge a “contract”).

French Guidelines

Let’s discuss French law.

France doesn’t possess copyright. Sorry for US readers, your “copyright” is nonsense that doesn’t observe here, though the observe “copyright” may perhaps perhaps even be seen misused verbatim most incessantly.

There are felony pointers round droits d’auteurs (authors rights), psychological property and patents. (Now no longer tool patents, tool patents are no longer acknowledged in Europe). Appreciate a read on Copyright and Authors’ Rights for some differences in level of view.

Droits d’auteurs are largely about keeping the rights of the author. This covers things adore copying and distribution (and allowing other of us to repeat and distribute).

Subsequent. In France there may perhaps be no distinction between a contract and a license (there changed into once in US law).

To be staunch there isn’t such a component as a license, thus licenses (foreign observe) are ALWAYS thought of to be contracts (that’s severe to the case at hand so better be aware this). Indicate to translate “license” to “contrat d’utilisation” [for usage] or to “contrat de distribution” [for distributors/resellers].

There may perhaps be like minded subcategory of contracts “contrat d’adhesion“, that is a contract the build the build isn’t any negotiation, one celebration submits to the phrases of the opposite with no likelihood to barter. Customary examples consist of a utility contract or a phone contract. US tool licenses fall below that subcategory.

Train that there are necessities to scheme a obliging contract. A license -most incessantly no longer designed as a contract- may perhaps perhaps no longer fit the necessities, through which case it is null. Necessities vary rather plenty by jurisdiction and whether person or enterprise to enterprise. Conventional components consist of the contract being in a single other language, the contract (EULA) no longer being seen sooner than shopping for the product, the contract no longer being in writing or signed by every events.

Working out the Verdict

The plaintiff sued for counterfeiting, in French law (incandescent ample that’s a component lined by psychological property).

The court docket changed into once the Tribunal de grande event (TGI de Paris) that handles civil circumstances related to authors rights and psychological property.

The court docket pushed apart the case, bringing up it has nothing to enact with counterfeiting (author’s rights or IP), it’s a contractual dispute. There may perhaps be a contract between the 2 events, the GPL contract, that puts responsibilities on every events [and Orange didn’t fulfill its obligations].

To address the case requires to give an explanation for the contract and to discover the responsibilities and whether they’ve been fulfilled.

Two complications here, first the plaintiff attacked on counterfeiting no longer on the contract, 2d the court docket may perhaps perhaps no longer be in skill to give an explanation for the contract. There may perhaps be a handful of courts in France facing various issues, a contractual dispute between 2 enterprise entities should quiet presumably scurry to Tribunal de Commerce (industrial court docket).

That’s a serious precedent here. It sets in stone that tool licenses are contracts and can easiest be settled in contract law / contract courts.

[US lawyers will note that a judgment on contract law vs copyright law is a potential risk in the US too, so they may sue on both grounds simultaneously to leave no easy way out for the defendant. Don’t think it could have worked in France because different courts and specifics.]

In thought Entr’ouvert may perhaps perhaps attraction (there goes one other 9 years!). Now no longer the finest thought which implies that of an attraction may perhaps perhaps be on the an analogous foundation (no longer obvious the litigation may perhaps perhaps be continued about breach of contract rather then counterfeiting) and it can per chance gather pushed apart the an analogous manner.

The offending tool changed into once retired from service in 2016, outdated by one other govt portal.

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