Plaintext
Open Source / Content Licences
before
European Courts
FOSDEM • Legal Issues DevRoom • 11 Feb. 2012
Philippe LAURENT
Senior Researcher at the CRIDS
(Research Centre - Information, Law & Society / University of Namur)
Lawyer at the Brussels Bar
MVVP
(Marx, Van Ranst, Vermeersch & Partners)
1
« Open Licences »
Free / Libre / Open Source Software Licences
Free software definition – 4 freedoms – FSF
Open source definition – 10 criteria – OSI
Ex. : GPL, BSD, MPL, APACHE, EUPL, etc.
SOFTWARE
Open content licences
Creative Commons Licences
GNU Free Documentation Licence
Licence Art Libre
Etc.
CONTENT
© Philippe Laurent, 2012
ADDRESSED ISSUES
“Acknowledgement” of the licences
(“validity”/“applicability” of the licence, “validity”/“applicability”
of specific clauses, “understandability”/interpretation, etc.)
Breach of (licence) // Copyright infringements
contract procedure procedure
Cease and desist [?] STOP Cease and desist
(Injunctive relief)
Indemnification Indemnification
PAY
(reparation of damages) (reparation of damages)
Compulsory execution [?] COMPLY
Use of material under Open Licences when executing a 3
contract (delivery of software).
© Philippe Laurent, 2012
List of EU cases
FREE/ OPEN SOURCE SOFTWARE
DE
H. Welte v. Sitecom (Landgericht Munchen I, 19 May 2004)
H. Welte v. Fortinet UK (Landgericht Munchen I, 12 April 2005)
H. Welte v. D-Link (Landgericht Frankfurt, 9 September 2006)
H. Welte v. Skype (Landgericht Munchen I, 12 July 2007)
AVM v. Cybits (Landgericht Berlin, 8 November 2011)
FR
Mandrakesoft (TGI Paris, 25 February 2003)
Educaffix (TGI Paris, 28 March 2007)
ERN (TGI Chamberry, 15 November 2007)
EDU 4 (Cour d’appel de Paris, 16 September 2009)
OPEN CONTENT
ES
SGAE v. Disco Bar Metropole (Juz. 1st inst. Badajoz, 17 February 2006)
NL
Adam Curry v. Audax (Voorz. Arr. Rechtbank Amsterdam, 9 March 2006)
DE
N. Gerlach v. DVU (Landgericht Berlin, 8 October 2010)
BE
Linchôdmapwa v. Théâtre de Spa (Civ. Nivelles, 26 October 2010)
© Philippe Laurent, 2012 4
FREE / OPEN SOURCE
SOFTWARE LICENCES
© Philippe Laurent, 2012 5
Netfilter (H. Welte) v. Sitecom [DE]
(Landgericht Munchen I - 19 May 2004)
Netfilter/iptables is part of Linux: GPLv2
H. Welte is one of the authors and maintainer of the project
Sitecom is a wireless hardware producer
=> firmware downloadable => contains Netfilter/Iptables
BUT : No reference to this fact/ to the licence /to source code on website
Court : preliminary injunction
GPL is not a waiver / GPL considered as General Business Conditions
Assessment of the validity of its clauses under DE law…
Problem with automatic reversal of rights (GPL art.4, sentences 2 & 3)
Resolutory conditions >< exhaustion of rights => physical copies
GPL art. 4 sentence 1 and art.2 & 3 anyway valid.
Clause invalid … => whole licence could be invalid (?)
…anyway, invalidity is not an accurate plea => any use illegal.
Preliminary injunction upheld: GPL violation = copyright infringement
Sitecom enjoined under penalty from distributing / copying / making
available without complying with the licence + pay. costs
© Philippe Laurent, 2012 STOP
H. Welte v. Fortinet UK [DE]
(Landgericht Munchen I, 12 April 2005)
H. Welte
Fortinet: produces anti-virus / firewalls
Running on a « FortiOS » OS
Use of GPLed code (linux kernel & other) concealed by
encryption
Settlement attempt failed
Court
Injunction :
=> cease and desist until compliance with GPL
STOP
© Philippe Laurent, 2012 7
H. Welte v. D-Link [DE]
(Landgericht Frankfurt I - 9 September 2006)
“msdosfs”, “initrd” & “mtd” = parts of the Linux-kernel : GPL2
H. Welte = fiduciary licensee
D-link = producer of data storage units whose firmware encompasses
the softwares hereabove
licence text of the GPL not enclosed, disclaimer of warranty not made, and
source code not available
Cease and desist declaration SIGNED (without acknowledgment of
obligation to do so)
D-Link refuses to pay lawyer’s fees + enforcement costs “negotiorum gestio”
Court : D-Link condemned to reimburse lawyer’s fees and enforcement
costs + “right of disclosure” (data on distribution of the units : suppl. & cust.)
Not complying with the GPL = violation of the copyrights in the programs =>
confirms obligation to cease and desist
“If GPL were not sufficient to form a legal relationship with Plaintiff, Defendant would
not have any right to copy, distribute or modify the three programs, such that a
copyright infringement by the Defendant would have taken place.”
No invalidity (if clause 2 invalid, whole licence invalid)
No antitrust-related problems
STOP, + a bit more…
© Philippe Laurent, 2012
H. Welte v. Skype [DE]
(Landgericht Munchen I - 12 July 2007)
Skype Technologies SA sells (third party) Linux-based VoIP
phones, through the Skype website.
Failed to provide the source code and the licence together with the
phones.
Skype claimed that a URL was provided in the documentation,
where (licence + code) were made available.
COURT :
This is not compliant enough : (offering source code for
downloading : only applicable when binaries are downloadable
from the same place)
=> Injunction
Skype appealed, then withdrew at the hearings, as a member of
the panel has explained :
"If a publisher wants to publish a book of an author who wants his book
only to be published in a green envelope, then that might seem odd to
you, but still you will have to do it as long as you want to publish the book
and have no other agreement in place"
© Philippe Laurent, 2012 9
AVM v. Cybits [DE]
(Landgericht Berlin - 8 November 2011)
AVM: producer of DSL terminals (FRITZ!Box router)
=> linux kernel (GPL2) => « iptables » (H.Welte)
Cybits: producer of internet filtering software « DSL-sitter »
=> downloads FritzBox software from AVM
=> modifies it => re-installs it on the FritzBox
(NB : no TPM)
AVM sues Cybits to make it stop, pretending
that FritzBox software is a work, or at least a protected compilation, under AVM
copyright and that cannot be modified without authorization.
Trade mark breach : “Fritz!Box” still visible after modification
Act of unfair competition (modified software => slight malfunctions => support)
H.Welte intervenes as licensor
If FritzBox is a derivative work : it should be redistributed under GPL2
AVM releases source code as required=> not allowing modifications is incoherent
If it is a bundle of software parts : GPL parts should be modifiable
Court : FritzBox is a collective work
GPL parts can be modified and re-installed … BUT …
Laurent,
© Philippe Cybit2012
prohibited from distributing the current version causing malfunctions 10
Mandrakesoft [FR]
(TGI Paris, 25 February 2003)
Mandrakesoft outsources the creation of manuals to Logidee
Contract :
Any manual should mention “made by Logidee”
No “harmful modifications” to the documents
Mandrakesoft
publishes the documents on line under GFDL & GPL
Logidee
Names of the authors and Logidee not mentioned
Bad modifications + translation
Tribunal :
Attribution clause not respected
Only the name of the company had to be mentionned
Indemnity : 1000 EUR.
TEACHING ? : importance of copyright ownership in FOSS licensing…
© Philippe Laurent, 2012 11
Educaffix [FR]
(TGI Paris, 28 March 2007)
Agreement : transfer of copyrights to e-learning software
(« Baghera ») from authors (public sector) to Educaffix (commercial
company) => commercial version (« Educaxion »)
Educaffix’ notice letter: impossibility to exploit the software as it
includes (JatLite) software, which is under GPLv2
Answer from authors : JatLite not part of the transfer,
but it is substitutable (development work outside the deal).
Writ of summons : claim
Nullity for fraudulent concealment (Dolus) : 1.000.000 EUR
/Alternative/ Termination for breach of contract : 10.000 EUR
Tribunal :
Email from transferer to Educaffix : « the « agent » communication platform
is JatLite, licensed under GPL2 by the University of Stanford, and is not part
of the transfer » => No Dolus (no bad faith / no deception)
Transferers underestimated the time/costs of the development of a
substitute to JatLite… mistake!
Nullity pronounced against both parties => No indemnity
TEACHING : importance of clarity and transparency
© Philippe Laurent, 2012
ERN [FR]
(TGI Chamberry, 15 November 2007)
Educational software (“electronic schoolbag”):
University + Administration => PRIVATE COMPANY ERN
(res. project) (pol. programme) Partnership (commercial version)
Transfer (licence) of exploitation rights
Exclusivity of exploitation / Non-competition clauses
Problem : ERN’s claims
Exclusivity not respected : software mainly based on software
under free licence with “contaminating effect”
+ incompatible licences => unexploitable
Admin. announces that the exploitation has been granted to PENTILA
ERN sues PENTILA for copyright infringement
TRIBUNAL
Copyrights transferred/licensed to ERN : Indeed BUT
Pentila: “ERN incoherent : Free software => ERN has no exclusivity!”
ERN: “but there are also proprietary modules”
TRIBUNAL : ERN does NOT prove that => CLAIM DISMISSED
© Philippe Laurent, 2012 TEACHING : ...?! Think before suing ?!... 13
EDU 4 [FR]
(Cour d’appel de Paris,16 Sept. 2009)
APFA =>public procurement for training spaces (mat.+Software)
EDU4 : multi-media training spaces builder => CONTRACTOR
APFA : administrative procedure
Verification of aptitude and services
APFA : questions on the legal nature of the installed software
No mention on the inclusion of free software VNC (under GPL)
Modified version of VNC concealed in the software
No original copyright notice: replaced by EDU4 copyright notice
Licence text deleted
Source Code not provided
GPL infringed => counterfeit software
APFA proposes amicable termination >< EDU4 sues for payment
EDU4 : never said EDU4 would be copyright owner
the version delivered is not the final version
=> verification for the tech. characteristics only
TRIBUNAL : Verification of Integral conformity (not tech. only)
© Philippe Laurent, 2012 Breach of contract by EDU4 => Termination
OPEN CONTENT LICENCES
© Philippe Laurent, 2012 15
SGAE v. Disco Bar Metropol [ES]
(Juzgado de primera instancia de Badajoz n°6
- 17 February 2006)
SGAE : collecting society of authors and editors
DISCO BAR METROPOL :
Plays music in the bar
No authorization from SGAE to use its repertoire
Sued by SGAE for illegal use of music
DEFENSE :
« I only play free / CC music : I need no authorization! »
TRIBUNAL
Accepts the existence of a rebuttable presumption that SGAE
manages the copyrights to a majority of musical works.
However, the Disco Bar proves that it has access to music that is
not part of that repertoire : this reverses the presumption
The Tribunal reverts to the SGAE arguments and evidences and
notices that SGAE does not prove the use of its repertoire
The tribunal rejects SGAE’s claim and condemns it to the payment
of the procedure’s costs.
© Philippe Laurent, 2012 16
Adam Curry v. Audax [NL]
(Voorzieningenrechter Arrondissementsrechtbank
Amsterdam - 9 March 2006)
Adam Curry: publishes pics of his own on Flicker
under CC BY-NC-ND (Logo + link)
Notice « this photo is plublic » (Non Commercial)
Tabloid (Weekend) published by Audax :
Article : The real life of A. Curry v. what he pretends it is…
=> comparison of pictures => reuses and publishes the 4 pics
Cease and desist action / fast track proceeding
Judge :
Audax is a professional, could not be mislead by the dual message
« cc / public »
In case of doubt: should have contacted the author
Conditions of the licence not respected
INJUNCTION STOP
NB: Highly criticizable appreciation of the court :
«the value of the pictures is minimal, given that the pics are already
freely available on the Internet »
© Philippe Laurent, 2012
N. Gerlach v. DVU [DE]
(Landgericht Berlin, 8 October 2010)
Nina Gerlach
=> picture of Thilo Sarrazin from the DVU (far-right political party)
=> published under a CC Attribution – ShareAlike 3.0 Unported
DVU (Deutsche Volksunion)
uses the photo
- without providing attribution to the photographer and
- without providing notice of the license used
Fast track cease and desist proceeding Thilo Sarrazin am 3. Juli 2009
Court’s finding: by Nina Gerlach / CC BY-SA
Breach of the licence => use not covered by authorization
Court’s decision : injunctive relief on preliminary ruling STOP
- prohibition to reproduce and/or make publicly available the photo without
naming the creator and adding the license text or its full internet address
corresponding to the license terms of the Creative Commons license
“Attribution ShareAlike 3.0 Unported” under a penalty of 250.000 EUR
- defendant bears the costs of the proceeding (4.000 EUR)
© Philippe Laurent, 2012
Lichôdmapwa v. Théâtre de Spa [BE]
(Civ. Nivelles – 26 October 2010)
Lichôdmapwa = small Belgian music band
publishes songs on http://www.dogmazic.net/
Licence CC BY-NC-ND (Non Commercial)
A theatre uses a small part of the song in a radio advertisement
The band sues : breach of contract
or in the alternative copyright infringement
=> Claim an indemnity of 10.380 EUR
Court’s Findings
BY not respected (no attribution)
NC not respected (commercial advertisement)
ND not respected (music modified to create the ad)
PAY
Calculation of the indemnity
“the court deems contradictory to advocate a non commercial ethic on the
one hand, but to claim indemnities on basis of a commercial tariff that
would be higher than the one of SABAM [collecting society]”
Condemnation : 1500 EUR per infraction = TOTAL 4.500 EUR
© Philippe Laurent, 2012
CONCLUSION
The validity of the licences is generally not a problem in practice
Open licences are not waivers / conditions are to be respected /…
If the licence is invalid, then you still have no rights to use the work
NB: no case where author or licensor raises the invalidity of the licence
Getting an injunctive relief : no problem
“Stop until you comply”
Copyright infringement
No case of active copyleft clause enforcement as such
No case where infringers were forced to release a modified version under a
copyleft/share alike licence … => no case on “derivative works”…
Indemnification
Much more tricky and unsure : Judges seem more confused
HOWEVER
A work released under an open licence does not become « worthless »
When an open licence’s condition is not respected, a damage is done!
Assessing the damage done is always problematic (open licence or not)
Copyright infringements should be treated equally (cfr. Linchôdmapwa)
© Philippe Laurent, 2012 20
Thanks for your attention !
Philippe LAURENT
Senior Researcher at the CRIDS Attorney at Law
F.U.N.D.P. Lawyer at the Brussels Bar
MVVP
Email : Email :
philippe.laurent@fundp.ac.be philippe.laurent@mvvp.be
http://www.crids.be http://www.mvvp.be
This work is licensed under a Creative Commons
Attribution-ShareAlike 3.0 Unported License.
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© Philippe Laurent, 2012