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


TL;DR Landmark case Entr’ouvert vs Orange, after 9 years of legal battle, the copyright court (TGI Paris) found the GPL license to be inapplicable and dismissed the case.

Read the judgment as, since there is nothing that this court can consider here, there is nothing that can be done but drop the case. Parties may sue again on another basis (contract dispute rather than copyright) in another court.

We’re going to explain the case, the parties, the points, the judgment. With quite a bit of extra explanation on the French legal system and Intellecual Property (IP) law.

The Case

Parties and objects:

  • Entr’ouvert: A software company in France creating software, specialized in identity and access management.
  • Orange (previously France Telecom): A large telecom operator in France (akin to British Telecom for British readers).
  • Orange Application for Business / Orange Business Services: An IT service and consulting company, spin-off from Orange (akin to Accenture/IBM/Tata).
  • ADAE: An administrative agency from the French government.
  • Mon Service public: A single-sign on portal to access French public services (taxes, benefits, etc…).

We will summarize Orange as Orange, the matter at hand is not how the conglomerate is structured.

We will summarize the government agencies as the French government.

Events:

  • Entr’ouvert created the software Lasso, a library for SAML authentication, first version released on 23 Mars 2004.
  • Lasso is distributed under GPL.
  • Orange won a project bid to develop an identity portal for the french government in 2005.
  • The portal operated from 2009 to 2016 (retired) using Lasso.
  • Entre’ouvert sued Orange in 2011 for counterfeiting, on copyright grounds (intellectual property).
  • A forensic report was ordered and took 3 or 4 years to complete.
  • The case was judged in court in 2019. Dismissed.

Judgment:

The case is dismissed. All the demands and claims are dismissed.

Entr’ouvert has to cover its own forensic costs and pay 14000 Euros fees to Orange to cover their costs.

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’obligations résultant de la licence[,] et non pas la violation d’une obligation extérieure au contrat de licence.

La solution du litige requiert l’interprétation de la licence libre, régissant les rapports entre les parties 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 susceptible d’être invoqué par la demanderesse, qui doit donc être déclarée irrecevable en son action 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 appears that the company Entr’ouvert is seeking reparations from harm caused by the non-execution by the defendant companies of their obligations imparted by the license[,] not for violation of an external obligation from the license contract.

The resolution of the case requires to interpret the free license [GPL], governing relations between the parties, to establish the legality or illegality of the behaviors.

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

As per the principle of non-cumulative responsibilities [sic], only contract law [responsabilite contractuelle] may be invoked by the plaintiff, who must be ruled to be irreceivalble in its action for counterfeit (copyright) and its demands, based on tort law [responsabilite civile]. […]
“””

One more part for context:

“””
En application des dispositions 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 reproduction permanente ou provisoire du logiciel (…) ; 2/ la traduction, l’adaptation l’arrangement ou toute autre modification et la reproduction 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’usage pour permettre l’utilisation du logiciel conformément à sa destination, 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 parties.

En l’occurrence 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 charge pour celui-ci de respecter les conditions d’usage prévues au contrat de licence correspondant.
“””

English Translation:

“””
As per article L122-6 of Intellectual Property […] ;rights to 1/ copy permanently or temporarily 2/ translation, adjustment or arrangement or any other modification and reproduction; are explicitly reserved by law to the author of the software and subject to permission from them.
Violating rights reserved to the authors is punished by counterfeiting (article L335-2 of Intellectual Property) .

However “particular conditions to allow usage of the software in accordance to its destination, by the person having the permission to use it” are arranged, under paragraph 2 article L122-6-2 of intellectual property rights, by contracts between parties.

In this case, the library Lasso is given under a freedom [sic] license GNU GPL v.2, that consists into for the license grantor to authorize a user, to run, distribute and modify the software, up to that user to follow conditions stated by the license contract.
“””

We will have to do a bit of explanation on the concepts here.

US Law and Copyright

Let’s talk US Copyright law, where the GPL is created and meant to make sense.

The US is heavily based around the concept of a copy, if you own a copy of something, you have the freedom to use it as you see fit (“you are free to use it”). Longer explanation here, have a read.

If you have a fork (the kitchen utensil) you can do whatever with that fork. If you have a software, you can do whatever with the software.

If you obtain a [legitimate] copy of a software you can use that copy as you wish. The analogy with a fork shows its limitations here because a fork cannot be duplicated ad infinitum. The right to create copies and to give them is limited to the copyright holder. That’s the basis of US software license.

Have another read of the GPL license with that in mind. Now you should understand why they are obsessed with copies and copying and making sure the license is included verbatim with the copy. Also a hint why the law is called “COPYright” in English, “the right to copy”.

What happens when things are copied without respecting the license?

US authors will sue for counterfeiting, under copyright. The copies can be considered counterfeits.

Counterfeit is a rather “strong” word, think serious damages and liabilities here. The party who created the copies can be pursued for damages, damages for each copy created, while all the copies are illegal to use.

The US legal system has the concept of license, among other things the license is a way for the owner to permission other to use and/or to copy their software.

In short, that’s about it.

Foreign readers will note that US companies like to think that they only lend permission to use a software, not ownership of the software or of a copy of the software (see wording in any EULA for example), which is nonsense to the foreign reader. This misunderstanding stems from the US culture being deeply rooted around COPY (copying/copyright/etc), they really don’t want the consumer to OWN a copy!

The US legal systems also has contracts and contract law. Contracts and licenses being different. Won’t get into more details there but suffice to say that the license is widely used to assert copyright, not necessarily as a contract (as other countries think of a “contract”).

French Law

Let’s talk about French law.

France doesn’t have copyright. Sorry for US readers, your “copyright” is nonsense that doesn’t apply here, though the word “copyright” can be seen misused verbatim once in a while.

There are laws around droits d’auteurs (authors rights), intellectual property and patents. (Not software patents, software patents are not recognized in Europe). Have a read on Copyright and Authors’ Rights for some differences in perspective.

Droits d’auteurs are mostly about protecting the rights of the author. This covers things like copying and distribution (and allowing other people to copy and distribute).

Next. In France there is no distinction between a contract and a license (there was in US law).

To be exact there is no such thing as a license, thus licenses (foreign word) are ALWAYS considered to be contracts (that’s critical to the case at hand so better remember this). Recommend to translate “license” to “contrat d’utilisation” [for usage] or to “contrat de distribution” [for distributors/resellers].

There is legal subcategory of contracts “contrat d’adhesion“, that is a contract where where is no negotiation, one party submits to the terms of the other with no possibility to negotiate. Common examples include a utility contract or a phone contract. US software licenses fall under that subcategory.

Note that there are requirements to form a valid contract. A license -often not designed as a contract- may not fit the requirements, in which case it is null. Requirements vary quite a bit by jurisdiction and whether consumer or business to business. Typical issues include the contract being in another language, the contract (EULA) not being visible before buying the product, the contract not being in writing or signed by both parties.

Understanding the Verdict

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].

To deal with the case requires to interpret the contract and to determine the obligations and whether they have been fulfilled.

Two problems here, first the plaintiff attacked on counterfeiting not on the contract, second the court may not be in capacity to interpret the contract. There is a handful of courts in France dealing with different matters, a contractual dispute between 2 business entities should most likely go to Tribunal de Commerce (commercial court).

That’s a major precedent here. It sets in stone that software licenses are contracts and can only 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 theory Entr’ouvert could appeal (there goes another 9 years!). Not the greatest idea because an appeal might be on the same basis (not sure the litigation could be continued about breach of contract rather than counterfeiting) and it might get dismissed the same way.

The offending software was retired from service in 2016, superseded by another government portal.

15 thoughts on “French judge rules GPL license to be inapplicable in French copyright court

        • The translation is quite remote from the original text.
          For one it’s well using “copyright” and copyright infringement, while the original document didn’t mention copyright a single time and was seeking charges for counterfeiting.

          It will give a grossly misleading view of French law to an English reader.

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          • I am not clear on why you seem to feel that la contrefaçon…d’un logiciel is not the same thing as “(software) copyright violation.” That seems to me a reasonable translation given that, regardless of the terminology, the same thing is being protected: “des droits de propriété intellectuelle du titulaire des droits d’auteur de ce programme telle qu’établie par les directives 2004/48 et 2009/24” or “the intellectual property rights of the owner of the copyright of that program as established by Directives 2004/48 and 2009/24.”

            The dispute here seems to be over whether France must provide this protection in intellectual property courts (the TGI) or can boot it over to the contracts courts so long as the same protection is provided there, and the judgement says, in paragraphs 44, 48 and 49, that the latter is ok.

            44. It follows that the national legislature remains free to lay down the specific practical arrangements for protecting those rights and to define, in particular, the nature, whether contractual or tortious, of the action available to the holder of those rights, in the event of infringement of his intellectual property rights, against a licensee of a computer program. However, it is essential that in all cases the requirements of Directive 2004/48 are respected.

            48. … It appears, in the light of the factors indicated in the previous paragraph and subject to verification by the referring court, that an interpretation of national law in conformity with the requirements of Directives 2004/48 and 2009/34 is possible in the present case.

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  1. I don’t understand this problem/case based upon this description. As far as described here, Orange uses a piece of GPL software upon which it builds to provide a web service. With that – in itself – is nothing wrong, a mixture of proprietary software and GPLed software is used by Google and Facebook and all large websites. If Lasso was licensed under the Affero GPL, Orange would have to release modification/additions to it, but it is not. Maybe a critical piece of information is missing? Also, don’t forget that the legal system in France does not work in the way the legal system works in US/UK; ‘precedents’ can be non-binding arguments in other cases, but each judge can rule autonomous.

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    • You’re thinking of the GPL loophole where providing access to a web service may not count as distributing the software?

      In this case, it’s a government project. Orange is developing software (embedding GPL pieces) and selling it to the French government, who is hosting it themselves (or outsourcing to yet another party).
      That loophole isn’t applicable.

      Orange cannot sell and transfer IP they do not own as required by the contract (assume typical government contract). The government can sue Orange to void the contract and seek damages (there is a precedent on that, French university vs some education software company).

      That’s where it gets messy. There is clearly a violation here. Both Entreouvert and the government should be able to pursue Orange on some grounds. How to pursue and on what grounds is the question? There are many possible angles and they would require to interpret the GPL and/or the government contract (which we don’t have). It’s a mess.

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      • Orange can certainly charge money to give a customer, under the GPL, GPL’d IP that they do not own; the GPL does not forbid this and Stallman has explicitly said on many occasions that he’s fine with the sale of GPL’d software. They must, of course, make the source available to the purchaser, and also license under GPL any modifications or additions to the code that they’re selling. And they may not place any limitations on the use of the IP, or offer additional rights to the customer beyond what the GPL states, e.g., they cannot give the customer the right to further distribute binaries without source.

        So whether there was a violation here really does get into the nitty-gritty details of the contract between Orange and the French government. But it seems plausible that a contractor could produce a derivative of a GPL’d program for a client, with the client owning the copyright, without GPL issues. The problem there is that the client probably cannot legally restrict the contractor from turning around and selling or even just open sourcing that same software, since the client has a copy and the entire program is GPL’d.

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        • >>> But it seems plausible that a contractor could produce a derivative of a GPL’d program for a client, with the client owning the copyright.

          Impossible. The copyright belongs exclusively to the original author and cannot be given away.

          If the contractor work is using GPL pieces, the result doesn’t belong to the contractor. The GPL pieces still belong to their respective authors and the status of the derived work gets really complicated ^^

          Now from an outsourcing perspective:

          When ordering software/outsourcing, the contract should state that all the created software/code/IP is owned by the party paying for it (the company is the author).

          When it turns out the contracting company has delivered software that they did not own/make. It is clear that they don’t own the GPL pieces and possibly the entire work depending on how things are evaluated (and the delivered result may be impossible to use for the client due to that and the contagious nature of the GPL). The contractor has failed to execute their part of the contract. The government can sue and find them in breach of contract (this happened once with an education software, there is a precedent).

          Now back to the author:

          The contractor is selling work that they do not own, pretending they own it. In one word conterfeiting.

          The author should be able to sue the s*** out of them and get damages.

          That’s the case we have here.

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          • >>> “Impossible. The copyright belongs exclusively to the original author and cannot be given away.”

            This is not true. Copyright can be sold or transferred. And all additions to a GPL licensed work are copyrighted by whoever wrote those additions. And any amount of money can be asked for these additions. The customer (in this case the government) has the right to obtain the source code and redistribute it under the GPL. But, afaik if the customer does not choose to exercise that right, what is the problem?

            If additions which do not link or modify the existing GPL software, this software can be licensed under any license. As is done by so many companies.

            I still don’t understand this case.

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          • I should have made it more clear that the copyright I was talking about was only on the changes and new code that the contractor had added, though obviously some people reading this did understand that anyway.

            If the contractor work is using GPL pieces, the result doesn’t belong to the contractor. The GPL pieces still belong to their respective authors and the status of the derived work gets really complicated ^^

            Well, not really so complicated from a practical viewpoint, since the entirety of the derived software is also be distributed under the GPL, and so is perfectly usable by anybody who receives it. If you want this derived software to be proprietary, there’s no issue there: simply don’t distribute it to anybody else. As I mentioned in my post, the real trick is to ensure legally that the contractor never recieves a distribution of that software, or at least does not redistribute it even though it has a legal right to do so.

            It’s indeed true that it’s often sensible for a contract to specify that the client owns the copyright on code written by the contractor, but that’s orthogonal to whether or not it’s allowable for the contractor to use GPL’d code. If you’re contracting for modifications to or extensions for GCC, in most cases the code you contracted to have written will have to be licensed under the GPL, and it would be silly, even foolish (not to mention expensive), to contract for a complete new compiler suite to avoid that. It’s entirely situational.

            In the particular case of Mon Service publique, where good SSO appears to have been a key requirement, quite possibly Lasso was the best choice, and quite possibly it was better to let the entire project be GPL’d (because, again, that does not mean the software becomes open source) than to pay for an alternate license. One can’t say without knowing the details, and particularly the risk that the contractor would open-source or otherwise resell the software to others, the effect that would have, and what could be done to mitigate it.

            The contractor is selling work that they do not own, pretending they own it. In one word conterfeiting.

            Well, that may be true in this specific case, though looking back now I’ve not seen any hard evidence in your article or the references that it is.

            What I see here is simply that this court said it’s not going to determine whether or not the contractor had the right to do what it did because it could have had the right if it adhered to certain licensing terms, and so whether it actually adhered to the terms that gave them that right is a matter for a contracts court, because that’s where licensing disputes are resolved in France’s civil law system.

            If that view is correct, there’s no real issue here related to general applicability of the GPL, nor another nine year slog; you simply take all the work you’ve done so far to the appropriate court and carry on.

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  2. As far as I understand the GPL, the customer (the government) has the right to get the source code from Orange – if one talks about a derived work from the lasso library (linking to it can be already considered such). But if the governement doesn’t ask for the code – or maybe they have it? I don’t understand how Entr’ouvert could assert claims. The GPL gives extraordinary rights to the customer, not to the original copyright holder.

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