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GNU is Not Unix The Courts Your Rights Online

GPL Wins In French Court Case 266

viralMeme writes "An appeals court in Paris has upheld the ruling from a lower court, which found that the French firm Edu4 had violated the GNU General Public License (GPL). The plaintiff was the French Organisation Association francaise pour la Formation Professionnelle des Adultes (AFPA), an umbrella organization for adult education." The basic charge was the removal of copyrights and such from VNC source code, and not distributing it.
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GPL Wins In French Court Case

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  • Re:Why? (Score:5, Informative)

    by Noryungi ( 70322 ) on Thursday September 24, 2009 @09:50AM (#29528083) Homepage Journal

    Read the article: AFPA - the education agency - sued edu4 - a company working for this agency - because edu4 did not release the source code to its modified VNC software.

    The court essentially said that AFPA was correct, that the GPL should have been upheld by edu4, and that the source code should be released by edu4 to its client, the AFPA.

    Essentially, this is good news: as far as France is concerned, the GPL has been challenged, and upheld in court. Modifications done by a private company to a GPL software should therefore be available for all.

  • Re:Why? (Score:3, Informative)

    by flyingfsck ( 986395 ) on Thursday September 24, 2009 @09:58AM (#29528177)

    "should therefore be available for all"

    No, not to all, only to their clients. What their clients do with it in turn is up to them.

  • Re:Why? (Score:1, Informative)

    by Chris Burke ( 6130 ) on Thursday September 24, 2009 @10:13AM (#29528359) Homepage

    No, not to all, only to their clients.

    Not according to the GPL. If you distribute GPL software to anyone, then you must extend the offer of source code to all third parties.

  • by Anonymous Coward on Thursday September 24, 2009 @10:17AM (#29528395)

    (self-reply). I'm no Pamela Jones, but here's a quick summary:

    After seeing the 21SEP04 emergency judgement at Bobigny high claims court

    After seing the 21SEP04 appeal by the defendant

    After seing the 22DEC06 decision whee the court agreed (in essence) for hearing expert opinion ..

    After seeing the expert's memo from 25APR08

    After seeing the last demands from the defendant
    After seeing the last demands from the plaintiff


    considering that all the due process (from 2000 onwards) has been followed

    considering that the call for tender (CCAP -- administrative part) was correctly structured

    considering that the Validation of Aptitude phase of the contract was botched (3 times adjourned, presumably because of technical issues), all the way from january 2001 to 21DEC01, but was finally declared done (starting the verification in regular service(VSR) phase); that the plaintiff did start to question the legal status of the software at that time;

    considering that AFPA started to question the sincerity of the 25MAY00 tender, (etc.) and that an offer to bargain and drop charges for EUR 228674 has been offered by AFPA; that finally given all that went wrong, the contract had been terminated 4JUN02

    Considering that Defendant sued AFPA for breach of contract because of the contract termination

    Considering that this Court already judged, on 22DEC06, that AFPA was entitled to getting its money back,

    Considering that the expert did perform his work correctly,

    Considering that AFPA's grief is not the use of Free Software, but the stealth use of a version of VNC modified in breach of the licensing terms (GPL), thus performing the act of counterfeiting, and the use of a backdoor password ("en introduisant un mot de passe connu uniquement de EDU 4 et non modifiable, permettant ainsi a EDU 4 de prendre le controle de tout poste en court-circuitant le mecanisme affiche de protection livre par EDU 4") [whoa, they really did this?? ] , and never did tell AFPA any of this

    Considering that EDU4 pretends it never hid the use of GPL, (etc.)

    Considering that EDU4 says the alleged defect on access control cannot justify the termination of contract, given that this defect was to be fixed within 2-3 months,

    Considering that proof was given that AFPA did know on 03AUG01 VNC and GPL software was to be delivered,

    Considering that on 27SEP01 EDU4 delivered licensing documentations which did not tell anything about GPL,

    Considering that on 21DEC01 the VA was pronounced only subject to EDU4 clarifying the legal status of all included software,

    Considering that on 04APR02, EDU4 alleged it never modified the VNC software, never breached GPL or copyright terms (except for set-up
    software, clear delimitation of EDU4 and VNC parts, etc.)

    Considering that the expert was unable to confirm the 04APR02 allegations on the materials delivered in Decembre 2001 (VNC was hidden, the
    license is not identifiable, the properties of the vncviewer.exe and winvnc.exe files had been altered, hiding the AT&T Research Labs name except for the vnc hooks.dll file,

    Considering that EDU4 failed to provide AFPA with the modified source code, which it had pledged to do on 15JAN02, thus voiding the allegation of a proper [GPL] delivery by 5APR02

    Considering that it appears from all facts that EDU4 failed to live up to its contractual obligations [...] caused the copyright notices to
    disappear from VNC, etc.

    Considering that AFPA is entitled, according to art. 1184 from Civil Code, to terminate the contract; that nothing being validated, EDU4 is
    not entitled to any payment

    Considering that EDU4, failing to prove its allegations, has to pay for all expertise and procedural costs (experts + 8K EUR)

    BECAUSE OF THOSE MOTIVES, THE COURT ... OVERTURNS the original judgement, and, deciding anew,

    declares AFPA (plaintiff) is founded in its demands

    declares EDU4 (defendant)'s claims are thrown out

    sentences EDU4 to pay AFPA 8K EUR

    sentences EDU4 to pay for all judicial and expertise costs, and that the appeal costs are to be paid for according to art. 699 of civil procedural code.

  • by Narishma ( 822073 ) on Thursday September 24, 2009 @10:21AM (#29528467)

    Read the article. The AFPA requested the source code of the modifications the company (Edu4) did to VNC but the company refused to provide it and so they were sued.

  • by Anonymous Coward on Thursday September 24, 2009 @10:26AM (#29528527)

    Your statement is (sadly) one of the many common FUD scarecrows foes of open source use to try to prevent companies from using GPL software.

    The GPL very specifically only requires you to offer to "convey" the "Corresponding Source" to the parties to whom you have conveyed object or binaries containing your modifications AND that you convey to those same parties your distribution rights so that they may convey your object/binaries and corresponding source to anyone they choose to (as long as they do so under GPL licensing terms).

    The GPL intentionally does not impose the burden for modifiers to positively disseminate their "Corresponding Source" to anyone other than those to whom they have already incurred the burden of distributing the binaries.

  • Re:Why? (Score:3, Informative)

    by Saint Ego ( 464379 ) on Thursday September 24, 2009 @10:26AM (#29528537) Homepage

    Propagation of this misinformation, specifically, is the reason the GPL is so misunderstood: too many people out there that think GPL is the same thing as public domain and derive a sense of entitlement from it.

    General Public License != Public Domain

  • Re:Why? (Score:5, Informative)

    by morgan_greywolf ( 835522 ) on Thursday September 24, 2009 @10:27AM (#29528553) Homepage Journal

    You're both almost right.

    3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

            a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
            b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,
    (rest of section 3 omitted since it's irrelevant here)

    Empahsis mine.

    Basically, edu4 could have either distribute the source with the binaries or accompany the binaries with a written offer to distribute the source to any third parties. (I suppose they technically could have done both and still be in compliance, but that seems rather redundant)

  • by Aim Here ( 765712 ) on Thursday September 24, 2009 @10:28AM (#29528561)

    It's an idiosyncracy of French law. The plaintiff here was a customer who did, yes, successfully sue for the source code. It probably couldn't happen in the US or UK.

    FSF France's take on this finds this noteworthy: []

    "But what makes this ruling unique is the fact that the suit was filed by a user of the software, instead of a copyright holder. It's a commonly held belief that only the copyright holder of a work can enforce the license's terms - but that's not true in France. People who received software under the GNU GPL can also request compliance, since the license grants them rights from the authors."

    Just when you thought the German courts were GPL-friendly, this shows up. Vive la France!

  • Re:Why? (Score:3, Informative)

    by nedlohs ( 1335013 ) on Thursday September 24, 2009 @10:28AM (#29528567)

    It's difficult because it depends how you "give source".

    If you go for the written offer to provide source rather than just providing the source upfront then you do in fact have an obligation to provide the source to all third parties.

  • by russotto ( 537200 ) on Thursday September 24, 2009 @10:30AM (#29528591) Journal

    Hang on just a second. Does the AFPA (the plaintiffs) own the copyright on the GPLd source? They do not. Then what standing do they have to sue anyone over it, or receive payment? This is GPL related, but the relief went to a 3rd party!

    Well, first of all, this was French law, not US or English, so their idea of standing might be different.

    Second, the AFPA were third party beneficiaries of the GPL -- as receivers of the binary, they were entitled (by the GPL) to receive the source. This might have granted them standing even in the US.

    From []

    Section 302 defines all beneficiaries of a contract as being intended or incidental. Only an intended beneficiary has standing to enforce a contract between two other parties. Whether a person is an intended beneficiary with the resulting right to sue depends upon the intention of the parties to the contract. That intent may be articulated in the contract itself, or discerned or imputed from the statutory context that prompted the contract to be executed.

    The GPL (IMO, IANAL) makes it crystal clear that the person receiving the binary is an intended beneficiary.

  • by Anonymous Coward on Thursday September 24, 2009 @10:34AM (#29528639)

    Worse. EDU4 never stated in its tender that it was to use VNC.

    It did afterwards, but then in what was supposed to be the final delivery (start of the Validation of Aptitude phase, which is where, in typical French IT purchase contracts, is where you deliver the final software and Client verifies it satisfies all contractual demands, but in practice some leeway for patches is introduced) modified GPL was delivered without ever showing that it was GPL software (and nary a source file in sight).

    EDU4 first sued to get paid as AFPA considered the delivery terminally incorrect and voided the contract (which is an explicit possible outcome in public IT contracts). AFPA showed in the first trial that GPL was being breached; the first judge didn't understand the deal. The Court of Appeals took the GPL at face value (which is hugely significant) and found that perfectly valid grounds for AFPA's behaviour all along.

  • Re:Why? (Score:4, Informative)

    by dlapine ( 131282 ) <lapine.illinois@edu> on Thursday September 24, 2009 @10:37AM (#29528659) Homepage

    mod parent up. The original post on this thread was just plain FUD.

    You must:
    1) give the modified GPL source code as well as the binaries to the person who is your client.
    You have the option to
    2) give the modified GPL source code to your client, and everybody else if you choose to.
    The second option is not mandatory.

  • Re:Why? (Score:3, Informative)

    by digitig ( 1056110 ) on Thursday September 24, 2009 @10:55AM (#29528917)
    AFPA were permitted to unilaterally terminate the contract (which is what the appeal was about) and so not pay EDU4 for the work. That looks like over a million euro -- hardly just "a slap on the wrist".
  • by Archangel Michael ( 180766 ) on Thursday September 24, 2009 @10:55AM (#29528921) Journal

    Just when you thought the German courts were GPL-friendly, this shows up. Vive la France!

    Okay, we are returning "Freedom Fries" back to their original name "French Fries". Happy now?

    We still apologize for French's Mustard, which is not french and can barely be called mustard.

  • by russotto ( 537200 ) on Thursday September 24, 2009 @11:24AM (#29529257) Journal

    If these claims are true, it would be near impossible for an end user in the US to claim to be the intended beneficiary. This would be because they had no idea of the specific contract obligations until after the fact which would push them more to the incidental beneficiary then the intended.

    Nothing in the information I posted or linked to says anything about concealing the terms of a contract from an intended beneficiary makes the intended beneficiary incidental. If you have other information please post it.

    Auto analogy:
    Ford sells off-lease cars to independent dealer "Car Emporium", with the contract of sale stating that "Car Emporium" will provide complimentary maintenance for these cars to whoever they resell it to for one year after that sale. "Car Emporium" doesn't do so and conceals the existence of that contract from the buyers. The buyers somehow find out. They _DO_ have standing to sue "Car Emporium", as they were an intended beneficiary of the contract.

    I have been arguing for years that the GPL is a contract concerning copyright while entities like the FSF and their fan base attempt to claim it's just copyright.

    The FSF doesn't claim it's "just copyright". They claim it's a license. They also claim if that IF you don't accept the license, THEN what you have is "just copyright". The defendants in this case could have claimed they never accepted the GPL, but that would have put them in hotter water. There likely STILL would have been a cause of action by the plaintiffs (because the defendant had provided them, unknowingly, with illegal copies of software), and there would have been a cause of action by the copyright owner for copyright violation.

  • by mea37 ( 1201159 ) on Thursday September 24, 2009 @11:27AM (#29529277)

    They didn't sue over the copyright. They sued over license violations that impacted them. The operative words are "that impacted them"; that gives them legal standing.

    The license gets its force from the copyright, but that changes nothing. The plaintif had a right which the defendant violated, regardless of the fact that the right in question was granted by a document whose authority came from somebody else's rights.

  • by gnasher719 ( 869701 ) on Thursday September 24, 2009 @11:36AM (#29529403)
    A good one, and not without logic: If you take software licensed under the GPL, modify it, remove all the traces of the GPL and sell it on claiming that you wrote it, then this is an act of counterfeiting. Yes, that makes sense.

Love may laugh at locksmiths, but he has a profound respect for money bags. -- Sidney Paternoster, "The Folly of the Wise"