French judge rules GPL license must be enforced via contract law, not copyright | Hacker News Reader

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

thehftguy.com

75 pointsuser599446150 comments

The title is inaccurate and somewhat alarmist; it is not as if the GPL just has been proclaimed unenforceable in France.

The major take-out from the article for me is that in French law, licenses are contracts and therefore the litigation should be judged as a breach of contract, not as an act of counterfeiting (as it would happen in the US).

A court that was asked to act on a counterfeiting issue therefore has nothing to do, and has essentially told the suing party to go and sue on breach of contract instead.

You can sue under counterfeiting in France as well (article L335-2).

However the judge ruled that you can't, the contract takes precedence over IP law.

Basically by using GPL you relinquish your ability to sue in copyright court and you can only go after the contract. That's a major precedent, 2 in 1.

> in French law, licenses are contracts

What else would they be? From Wikipedia https://en.wikipedia.org/wiki/Software_license:

> A software license is a legal instrument (usually by way of contract law, with or without printed material) governing the use or redistribution of software.

I mean I'm sure there are some exceptions, but this is the norm as far as I know and I'm not really sure it makes sense for it to be considered something else.

What else would licenses be if not contracts?

The could be something something else: documents granting you certain permissions and denying others in a unilateral way, whether you agree or not.

"Contract" could be defined in such a way that such documents are not covered under definition. If a contract is some agreement that two parties negotiate and sign off on, then a copyright license isn't a contract.

> What else would licenses be if not contracts?

In Anglo-American law, at least, a license is a permission which may either be gratuitous (most open source software license usually would fall into this category) or part of a contract (which requires mutual consideration, among other things, rather than a one-sided grant).

But, IIRC, gratuitous licenses are, in US copyright, enforced under contract principles, mutatis mutandis, not under the bare law otherwise applicable to the rights transferred. And I think the FSF is very much aware of that, and that is a big reason for the automatic termination on breach provisions of the GPL, to get back to the bare law, no license situation, at least after an established breach.

No. A gratuitous software license is a bare license. Because the licensor gets nothing, nothing is binding upon them. They may alter the terms of or revoke the license at any time, even notwithstanding promises in the license not to do that (as in the GPLv2).

It is very far from the norm, both in US and international law. The only things in common are they are written down, and involve obligations.

The key difference is that a license implies obligations on only one party (not the copyright holder), and they do not need to have signed or agreed to anything to be obligated. There is no requirement to exchange value for license provisions to bite.

You can make a contract around granting a license if you like, but that is wholly up to the copyright owner.

Another key difference is that copyright ownership cannot be transferred without a physical written paper identifying itself as such.

Many lawyers and judges are very unclear on copyright law, and say confused things like you did. That is not law.

> It is very far from the norm, both in US and international law. The only things in common are they are written down, and involve obligations.

Mind citing?

The US Constitution and the Berne Convention are both readily available to read.

In the Constitution, copyright gets its own section.

> What else would they be

The common answer is that a copyright license are only a pure set of permissions that enable a person to do something which otherwise would make an activity illegal.

A contract in contrast is an agreement between minds that defines rights and duties of the parties.

In addition, a copyright license can only give permission for activity which copyright law make illegal. It is limited to be within the scope of what copyright law already restrict. A contract on other hand is only limited by contract law. A typical restriction on contract is that you need to be an adult of legal capacity, ie not a child or under a legal guardian. If a software license is governed by contract law then those restrictions would suddenly apply to software licenses, and the scope of a copyright license could go beyond that of copyright law, both which sounds strange unless contract law has specific rules in places for copyright licenses.

My guess is that french contract law actually have specific rules for copyright licenses, in which case it is more similar to copyright law of other countries but simply placed under the heading of contract law.

In common-law jurisdictions, for something to be enforceable as a contract there must be three things: an offer, acceptance, and consideration (something valuable gained by both parties). Because most users did not pay for open source software, when they download it there is no consideration to the licensor. Therefore their license to use it is not enforceable as a contract; it is what's known in law as a bare license. Bare licenses are not as strong as contracts; in particular, the licensor can revoke a bare license at any time.

In short, it is very risky to use open source in the USA, UK, Canada, Australia, etc. without additional legal framework (such as drawing up a contract with the author) because the author of the OSS you use can revoke your license at any time, for any reason. This has not been actually tested in court yet, but it is a concerning wrinkle of contract law in those jurisdictions.

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

Just kind of? The title is totally misleading.

It was a major legal question whether the GPL could be enforced and whether that would be under copyright equivalent and/or as a contract.

The ruling determined that, hence a major precedent.

Took 9 years to get there, the plaintiff lost the case and had to pay a chunk of the legal fees. They'd not call that clickbaity.

It was actually the prosecuting party that lost, because their claim was judged inadmissible (to that specific court).

fixed. commenting too quickly.

Its clickbait because the title is misleading and over the top. That doesn't mean the precedent isn't interesting its own right.

does French legal system have to honor precedents?

Ok, I've taken a crack at making the title more accurate.

Most important part of the Article imo:

"It sets in stone that software licenses are contracts and can only be settled in contract law / contract courts." (in France that is)

So it's not that the GPL is useless in France, they were just suing for the wrong thing in the wrong court

I think the key is that this means that the GPL in France now has no successfully history in court. One of the nice things about GPL in the US is that there is existing cases where it was successfully defended, and you can use this history as blueprint for your case. And the history is even used to inform the Judges decision.

In France, GPL enforcement now has to start from scratch and can not re-use the enforcement strategies that worked in the US.

Actually, it is not that bad. Having this precedence now settled where does the GPL fit in the French system, which now make it much more simple to sue since you know which court and for what (breach of contract) to sue.

That's a good point. This case now _is_ the precedent that the others can build on. First step kind of.

What other than contracts would they be?

Well in the absence of a contract using the software counts as a breach of copyright. Apparently the French court has ruled that if someone intends to use GPL licensed software and doesn't adhere to the terms they should be sued for breach of contract first and breach of copyright second.

It could have been the other way around, that failing to adhere to the terms in the license means there is no contract in the first place.

But the next time such a case arises, that stone will take seven years to find.

> The plaintiff sued for counterfeiting, in French law (fair enough that’s a thing covered by intellectual property).

> The court was the Tribunal de grande instance (TGI de Paris) that handles civil cases related to authors rights and intellectual property.

> The court dismissed the case, stating it has nothing to do with counterfeiting (author’s rights or IP), it’s a contractual dispute. There is a contract between the two parties, the GPL contract, that puts obligations on both parties [and Orange didn’t fulfill its obligations].

I'm a layman, and as a layman, that sounds reasonable. GPL is a license, and under local law, a license is a contract. So the court asked them to fight in a commercial court that deals with contractual dispute.

Is there a controversy that I failed to understand?

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

Yes, exactly.

Now try to find an unambiguous way to summarize that in 80 characters, the limit for titles.

It's hard to know if the guy writing this knows what he is writing about because he makes incorrect offhand statements about French law.

French copyright: France has signed Berne convention and is also subject to European copyright law.

Software patents in Europe: Harder to patent compared to the US, but still possible.

What statements are incorrect?

How is the berne convention related to that? Every country has their own copyright law (usually not copyright but authors rights in Europe), the berne convention didn't change that.

Berne convention is French law.

International agreements become part of the national legal system after ratification and incorporation.

In France–and with their monist system–ratified treaties are considered to be superior to domestic legislation even without special incorporation.

French law is French law. Bern convention is the Bern convention (that was a hundred years ago by the way).

How is the Berne convention relevant to the case, specifically?

Are you from the US? I've only ever seen US folks try to get into the Berne convention and monism/dualism. I'd like to understand your perspective if you want to talk about these topics.

>How is the Berne convention relevant to the case, specifically?

Your claim that "France doesn’t have copyright." Droits d’auteurs (authors rights) is copyright. Here in Finland copyright is also called authors right (tekijänoikeus), but its just different term for the exactly same thing.

France, US, EU all are parts of Berne convention, Two UCC's, WTO and TRIPS. French copyright court treats all these agreements superior to domestic legislation.

It is not the same thing at all. The US copyright is very different from the French droit d'auteur. The Berne convention merely fixes some common ground and minimum protection. For instance copyright can be fully transferred. The droit d'auteur is partly impossible to transfer (moral rights always remain to the author).

Copyright has a precise definition and is opposed to the droit d'auteur in its philosophy, so saying that France has copyright is a little bit like saying France has a king, sure it plays a somewhat similar role but is is fundamentally different

This happened over a year ago, right?

https://www.entrouvert.com/actualites/2019/entrouvert-versus...

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

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

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

That's the summary

So my interpretation is (IANAL) that the Entrouvert released some library under GPL, and then when a big company used this free library, they wanted some money out of them and tried to use copyright mechanism to circumvent GPL as a free software license. Judge said they can't do that.

So looks like it's a good case for GPL.

The title is very misleading and some commenters here seem to be interpreting it differently, so please correctly if I'm wrong.

1) Entrouvert released some work under GPL (a SAML authentication library).

2) Orange (big company) used the library in some of their proprietary software, software that was sold to the French administration.

It is a very good case for the GPL indeed.

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

Isn’t French law based on civil law so the decisions of courts are non-binding / do not carry precedent? Source, Wikipedia.

I also find it odd that the French don’t distinguish between a contract and a licence, as in UK-US law a licence is a promise not to enforce one’s rights under copyright law rather than a contractual agreement.

Apart from the title and the alarmist tone it should also be noted that this decision dates from June 2019, so it's not exactly breaking news.

Apparently the issue of whether a breach of license is a copyright violation or a contractual breach is not new in France and it is usually deemed copyright violation but it depends on the specific case. This case does not actually seem to settle the issue, and the court seems to have concluded that the plaintiff was seeking damages for a breach of contract, and not for copyright violation.

This is all based on an article by French lawyers (in French) [1]

[1] https://www.seban-associes.avocat.fr/le-non-respect-dune-lic...

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

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

Why is this flagged?

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

EUPL to the rescue?

Quelle bonne surprise, n'est-ce pas?

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