Re: Paris Court of Appeals condemns Edu4 for violating the GNU General Public License

Tuesday, FSF France published an article which led to several enthusiastic reactions among specialized websites. And the news is indeed interesting since Paris Court of Appeals condemned Edu4 for violating the GNU General Public License, giving it therefore a legal value. Until then however, nothing new: Free Software most used licence has already been enforced in court in several countries such as,

  • The United States, in Jacobsen v. Katzer case which said GPL was enforceable as Copyright condition;
  • or in Wallace lawsuit which opposed him against FSF, IBM, Novell and Red Hat, during which the judge said regarding competition issues:

    The GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation.

  • In Germany when Harald Welte won against Skype which used Linux without meeting GPL conditions (Harald Welte is also part of the French ISP Free case).
  • And also in France in 2002, during a case between University of Grenoble and company Educaffix about a software which was derivative from another licensed with GPL.

Well, everything becomes interesting in this new case comparing to those mentioned below, because AFPA and EDU4  are not arguing as copyright holders over a copyright or licence issue: it’s about an end user (AFPA) and a service company (EDU4).

But we better have to be careful and avoid hasty conclusions. Let’s go back to where it begins.

In 2004, AFPA was convicted to a €900,000 fee for EDU4, when the court considered that unilateral contract rupture from AFPA was not justified. The contract in question is a public tender from 2000, won by EDU4. But in 2001, AFPA discovers EDU4 used Free Software VNC in its product and therefore argues it is not conform to the contract, which AFPA breaks.

But EDU4 appealed and AFPA asks for an additional expert in 2006. This expert report includes overwhelming conclusions: EDU4 has hidden the usage of VNC by removing original copyrights and GPL text (thus disabling its mechanism). Besides, modifications made to VNC had disastrous consequences on IT security and personal data protection.

It is based on those reasons AFPA had the right to break the contract, since there was obviously counterfeiting, lack of sincerity from EDU4 and furthermore high risks for IT security (with a backdoor). This is why the Court of Appeals condemned EDU4.

As a matter of fact I see no reason to consider that it would have been different with any other software licence than the GPL. Which leads me to think that matters of source code distribution, and moreover copyleft protection, were not considered pertinent to the Court’s ruling.

It is true that the ruling mentions a few times the issue of source code distribution, but it was never directly taken into account, but only to show as an evidence EDU4 lack of sincerity in the procedure (copyrights removal and confusion about the software legal nature.)

Furthermore, I would even argue that EDU4 did not have the right to distribute the modified software source code, since they broke GPL when conveying a modified version of the Software without AT&T copyrights or the GPL text. By failing to respect GPL, they did not have the right to use, share, modify the Software anymore.

In short, EDU4 is accused of software counterfeiting by changing copyrights mentions to put their own, and having sold a product which was not compatible with the original mission given by the public tender, because of security issues for AFPA.

So it seems to me that there are little, if none, implications for us because copyleft mechanisms of the GPL were not analysed in the process of condemning EDU4, simply because those mechanisms did not involve AFPA. They only involved EDU4 and VNC authors.

Who has the power to enforce GPL? Since the GPL is a copyright license, the copyright holders of the software are the ones who have the power to enforce the GPL. If you see a violation of the GPL, you should inform the developers of the GPL-covered software involved. They either are the copyright holders, or are connected with the copyright holders.

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