Martin von Willebrand's Blog

Last week many internet news sources noted a decision by the Appeal Court of Paris (Arstechnica, FSF France). The news was largely around “an important case on GPL license enforceability”. I learnt that it might not be so and decided to look at the decision (Cour d’Appel de Paris, Pôle 5, Chambre 10, no: 294, issued on 16 Septmeber 2009). I do not know any other details of the case, nor have I looked at anything else than the 8 page long decision.

It’s a contract dispute regarding an IT-project. EDU 4 had won a contract (in 2000) and agreed to deliver a software (solution) to AFPA. In a series of many turns the parties presented their latest claims to the appeal court in April 2009. Basically EDU 4 claimed not to have breached  the it-project contract and to be entitled to all payments and AFPA claimed breach of contract and that the vendor was not entitled to any more payments and that early termination of the contract was justified.

Not a single claim (by either party), as cited in the court’s decision, is based on GPL license, any interpretation of GPL as a contract or any copyright. The decision cites GPL license a number of times, mostly to describe VNC-software and also partly related to the discussion whether it was allowed or not to include free software into the outcome of the project. The following is probably the argument closest to the question on GPL (page 8 ):

“Considérant qu’il résulte de l’ensamble de ces éléments que la société EDU 4 a manqué à ses obligations contractuelles en livrant en décembre 2001, date à laquelle devait s’apprécier sa conformité, un produit, d’une part qui présentait pour les utilisateyrs des EOF des risques d’atteinte à la vie privée, d’autre part qui ne satisfait pas aux termes de la licence GNU GPL puisque la société EDU 4 avait fait disparaître les copyrights d’origine de VNC sur les propriétés de deux fichiers en les remplacant par les siens et avait supprimé le texte de la license;” (underline here)

For those of you, who do not read French, a short and partial translation: “[The court] considers that it results from the whole of these elements that the entity EDU 4 has not fulfilled its contractual obligations with its delivery in December 2001… that contained on one part privacy risks… on other part which did not satisfy the terms of the GNU GPL license, since the entity EDU 4 had made disappear the original copyrights of VNC from the proprieties of two files replacing these with its own copyrights and since it had deleted the text of the license;” (underline here)

It can be concluded that the above referred section does not handle enforcing of GPL, but appreciation of fulfillment of a contract between EDU 4 and AFPA. To the extent the decision handles the terms of GPL, it is not far reaching.

It can also be concluded that although a user claimed its rights, it was not based on GPL, but based on a separate contract between the user and the distributor.

As regards source code to the modifications, the court notes at one stage that EDU 4 did not deliver the source codes to the modifications it had made, although EDU 4 had committed in one of its letters to do so. It is not certain from the decision text whether EDU 4 explicitly mentioned delivery of the source code in its letter or just a delivery satisfying the terms of the GPL. In the latter case, it would be a (evident, in my mind) conclusion by the court that satisfying the GPL in redistribution required delivery of the source of the modifications to the software.

As to the relevance of this decision in relation to open source enforcement, it can be concluded that the court habitually considers the software licensed under the terms of GNU GPL and attaches legal significance to the terms. On the other hand, the GPL license and its terms play a very limited role in this decision and thus I would hesitate to attach almost any legal significance to this decision as regards enforceability of GPL. Of course, since I habitually consider the GPL and other open source licenses enforceable, I do not see great need to look for legal precedents to establish that GPL is enforceable.

OK, so what?

Open source or free software (choose your preferred term) has gained a lot of ground during the last couple of years, especially in some professional areas, where it wasn’t accepted earlier. Open source, as a licensing model, is becoming mainstream. It is my belief that today open source is best promoted with a professional and unbiased approach.

Many open source projects have been mainstream for very long and there are open source projects that will never become mainstream due to e.g. limited scope of the projects or another issues with the projects. It is important to understand that it is not open source that is good or bad software, it is the invidual projects that are good or bad. This is the same with closed source projects: some are better, some worse. But open source, as a licensing model, is becoming mainstream.

Open source as a concept or phenomenom is already known – what it means in practice and where it can be benefited from is less known. There are many incorrect beliefs that open source software is an area for hobbyism and unprofessionalism. (Yes, there are unprofessional open source projects and there are open source projects created as a hobby, but that applies to closed source projects as well. And software created as a hobby can be professional. The professional projects are the ones that should interest professionals – and there are many.)

If one strives for quick publicity and recognition by sacrificing professionalism, I think it does not support the open source concept, not any more. It just supports those unfounded beliefs that open source is an area of unprofessionalism and hobbyism. Five to ten years ago, when open source was less known, this may have been different. Now, open source is becoming a serius licensing model for many: for businesses and inviduals and for users and vendors, and it deserves professional treatment. I hope this short report helps with that.