
French judge rules GPL license must be enforced via contract law, not copyright - user5994461
https://thehftguy.com/2020/09/15/french-judge-rules-gpl-license-to-be-inapplicable-in-french-copyright-court/
======
phoe-krk
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.

~~~
cheph
> in French law, licenses are contracts

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

~~~
ncmncm
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.

~~~
cheph
> 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?

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

In the Constitution, copyright gets its own section.

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

~~~
user5994461
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.

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

~~~
user5994461
fixed. commenting too quickly.

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p410n3
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

~~~
turbinerneiter
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.

~~~
maeln
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.

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

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powersnail
> 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?

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radicalcentrist
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.

~~~
user5994461
Yes, exactly.

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

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nabla9
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.

~~~
user5994461
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.

~~~
nabla9
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.

~~~
user5994461
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.

~~~
nabla9
>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.

~~~
mijamo
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

------
panny
This happened over a year ago, right?

[https://www.entrouvert.com/actualites/2019/entrouvert-
versus...](https://www.entrouvert.com/actualites/2019/entrouvert-versus-
orange/)

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kazinator
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.

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nephanth
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](https://cecill.info/index.en.html) )
project existed iirc

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MaximumYComb
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

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nickflood
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.

~~~
user5994461
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.

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madapeti
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.

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aronpye
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.

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mytailorisrich
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...](https://www.seban-associes.avocat.fr/le-non-respect-dune-licence-de-
logiciel-releve-t-il-dune-responsabilite-delictuelle-du-fait-de-la-
contrefacon-ou-dune-responsabilite-contractuelle)

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

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

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bryanrasmussen
Why is this flagged?

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tsimionescu
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.

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formerly_proven
EUPL to the rescue?

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mangix
Quelle bonne surprise, n'est-ce pas?

