French Court Finds Violation Of GPL... Despite No Involvement Of Copyright Holder

from the interesting... dept

Thu, Sep 24th 2009 2:17pm — Mike Masnick

Guerby alerts us to the news that a French Appeals Court found that education tech company Edu4 violated the GPL by distributing a version of VNC without offering up the source code (and removing the GPL copyright notice). As the announcement notes, one interesting factor here was that it was filed by Edu4's customer, an education group, not the copyright holder. While it's nice to see a legal win for open source software, this does raise some questions. My guess is that the rationale is that this isn't a copyright case, but a licensing case. Thus the education group, AFPA, can actually be a party to the lawsuit. Still, it does raise questions over who has the right to make sure the GPL is enforced.

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Filed Under: copyright, france, gpl, license
Companies: afpa, edu4

12 Comments

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ChurchHatesTucker (profile), 24 Sep 2009 @ 3:33pm

EULAs?
So can I file suit in France to enforce Apple's EULAs?

This is just odd.
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jerome (profile), 24 Sep 2009 @ 4:20pm

All what AFPA was asking is the right to cancel the market.
The full story is that AFPA launched a public tender and ordered a big quantity of computers plus software; what was delivered included a binary copy of VNC with a non-changeable password known only to the provider (which would allow third party to remotely take control of the computers without client's knowledge). The provider later failed to provide the sources while it stated it would; AFPA was displeased and cancelled the order. The provider sued AFPA to force them to pay. The court of appeal of Paris decided that the provider did not follow its obligations (the expert stated that the installation of VNC was not properly mentioned to the user, that the licence and copyright notice were not provided and that the user could not change the VNC password; the Court also noticed that the source was not provided and thus the GNU GPL has been violated). The Court then ruled that AFPA was right to cancel the order and refuse to pay.

So while you may sue Apple, you are probably not in the same conditions as in this trial (AFPA had to follow public tender rules, they ordered for $250,000 and they were asking to cancel the order, not to get the VNC source code).
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Jimmy the Geek (profile), 24 Sep 2009 @ 4:33pm

Since you own every GPL source code too
They you can sue to protect your copyright in any GPL source code.

Everyone owns every line of GPL source code.
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Anonymous Coward, 24 Sep 2009 @ 4:57pm

I think that maybe Edu4's could be a representative of the owners rights and acting as a proxy or else this does feel wrong if it is not the case.
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inc, 24 Sep 2009 @ 5:16pm

why would they even need the vnc password? just remove the binary and firewall off the port. People outside your network should not have inbound access anyway unles you are running publicly available service like http or vpn.
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Anonymous Coward, 24 Sep 2009 @ 6:17pm

@inc
I think they deal with schools and as such they may have the need to offer services like "online schedules", "online test results" over secure channels not couting how employees may gain access to data when they are at home, telecommuting or something.
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..., 24 Sep 2009 @ 6:41pm

Re: Since you own every GPL source code too
Ahem ... what ?
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..., 24 Sep 2009 @ 6:46pm

Re:
They probably thought they were purchasing a turn key system which included functional VNC, why should they then have a bunch of maintenance to perform?
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guerby (profile), 25 Sep 2009 @ 2:22am

"My guess is that the rationale is that this isn't a copyright case, but a licensing case. Thus the education group, AFPA, can actually be a party to the lawsuit. Still, it does raise questions over who has the right to make sure the GPL is enforced."

Yes this is not a pure copyright case since the copyright owner isn't involved at all.

About the question, it has been answered clearly: any person who is provided a GPL software binary can ask its provider to give him the corresponding source. Note that neither Edu4 nor the judge raised any doubt about that, and the only valid basis for the source code request is in the GPL, ie it's not in a separate contract between Edu4 and AFPA.

So at least in France this is now quite well settled.
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David "Lefty" Schlesinger, 25 Sep 2009 @ 6:15am

"Copyright" versus "License"
It's difficult to fit cases like these into nice, comfortable taxonomies, since there's little existing case law around "naked licenses", such as the GPL, i.e. a license without an associated contract.

Guerby has it right: as a condition of the terms of the GPL, anyone provided with a binary (as AFPA was, by Edu4) has the right to demand the associated sources and the provider of the binary (Edu4 in this case) has the obligation (as a condition of _their_ having received the source code under the GPL terms) to provide it to them, for no more than the cost of putting the data onto media and shipping it...
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Anonymous Coward, 25 Sep 2009 @ 6:46am

"Copyright" versus "License"
Thank you guys for clarifying that.
It is good to know :)
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David "Lefty" Schlesinger (profile), 25 Sep 2009 @ 6:58am

And Another Thing!
"Everybody" does not "own every line of GPL code."

Only the author, i.e. the person whose name is on the copyright line (legitimately) owns the code. If a company were, say, to take GPL code, use it in a product which they shipped to consumers, and fail to provide the source code, the author could go after the company for copyright infringement, and the case there is extremely clearcut: the organization has infringed on the author's copyright. (Harald Welte of gpl-violations.org, and the author of iptables, has gone after a number of companies, successfully...)

Consumers who received the device could (as AFPA did in France) go to court to force the vendor to adhere to the terms of the GPL, but they would not have the legal standing to make a copyright infringement claim...
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