The first case in China! Violation of GPL agreement resulted in infringement fined 500,000

Recently, the first domestic infringement case in violation of the GPL agreement was sentenced. It is reported that the defendant in this case used the system code attached to the GPL3.0 agreement with the plaintiff, but refused to perform the applicable conditions stipulated in the agreement, and thus lost the source of the rights and constituted an infringement. The fact of the infringement was established and was finally fined RMB 500,000.

According to the GPL3.0 agreement, the licensor allows developers and users to freely use the design preconditions (such as open source code, marking copyright information, and modifying information), which are also the conditions for cancellation attached to the agreement. Once the developer or user violates this condition, the GPL3.0 agreement will be automatically terminated between the licensor and the developer/user, and the developer/user's license based on the agreement will be terminated immediately. The copying, modification, publishing, etc. performed by the developer or user constitutes infringement due to the loss of the source of rights.

Case profile

Plaintiff: Jining Luohe Network Technology Co., Ltd.

Defendant: Fujian Fengling Chuangjing Technology Co., Ltd. (hereinafter referred to as Fujian Fengling Company)

Defendant: Beijing Fengling Chuangjing Technology Co., Ltd. (hereinafter referred to as Beijing Fengling Company) (Fujian Fengling Company is a wholly-owned subsidiary of the defendant Beijing Fengling Company)

Defendant: Shenzhen Tencent Computer System Co., Ltd. (hereinafter referred to as Tencent)

The plaintiff Jining Luohe Network Technology Co., Ltd. independently developed the "VirtualApp" plug-in framework virtual engine system V1.0 (VirtualApp V1.0 for short). VirtualApp introduced an open source agreement from the July 8, 2016 version. It is the LGPL3.0 agreement and was replaced by the GPL3.0 agreement on August 12, 2016. On October 29, 2017, the plaintiff company deleted the expression "applicable GPL3.0 agreement" in the subsequent open source version of VirtualApp.

On November 8, 2017, the plaintiff company obtained the computer software copyright registration certificate for VirtualApp V1.0, and enjoyed all the rights of VirtualApp V1.0 software copyright in accordance with the law.

The update (corresponding to the Git code 8e6d9cd925af55b53a7e93046c469dd69676c38b) submitted by Lody (the shareholder of the plaintiff company and the VirtualApp project owner Luo Di) on December 30, 2017, the CHINESE.md file stated "VirtualApp (Chinese name Luo box) August 2017 Formal corporate operation, when you need to use VirtualApp for commercial purposes, please be sure to contact QQ1 * purchase a commercial license... The VirtualApp source code will stop updating on December 31, 2017."

In September 2018, the plaintiff investigated and found that the software named "Dim Sum Desktop" used the code of VirtualApp V1.0. The source code of the two software was analyzed and compared, and 308 of the 421 comparable codes between the two were substantial. Similarity, there are 27 codes with high similarity, and 78 codes with general similarity. Therefore, the alleged infringing software is substantially similar to the software involved in the case.

After the plaintiff filed a lawsuit in the court, the court trial made it clear that the petition was ordered as follows:

1. The defendant Fujian Fengling Company and the defendant Beijing Fengling Company immediately stopped infringing on the plaintiff's computer software copyright, that is, immediately stopped providing all versions of the "Dim Sum Desktop" software download, installation and operation services through the Internet;
2. The defendant Fujian Fengling Company and the defendant Beijing Fengling Company compensated the plaintiff for economic losses of 20 million yuan;
3. The defendant Fujian Fengling Company and the defendant Beijing Fengling Company compensate the plaintiff for a reasonable fee of 500,000 yuan for stopping the infringement;
4. The defendant Fujian Fengling Company and the defendant Beijing Fengling Company shall bear the litigation costs in this case.
Evidence shows that the defendant, Fujian Fengling Company, is the copyright owner of the alleged infringing software "Dim Sum Desktop". The defendant Beijing Fengling Company was also marked as the developer of "Dim Sum Desktop" by the relevant Internet platform and was registered as the copyright owner of the "Dim Sum Desktop" software. In addition, the "Dim Sum Desktop Official Website" and "Application Bao" websites that provide services for downloading, installing and operating the alleged infringing software are operated by the defendants Fujian Fengling Company and Tencent Company respectively.

After the case was filed, after investigation, the accused "Dim Sum Desktop" App (V6.5.8) used the VirtualApp released by the plaintiff under the GPL3.0 agreement, and the defendant also confirmed this.

According to the judgment of this case, the GPL3.0 agreement is a civil legal act with a contractual nature. It can be identified as a copyright agreement between the licensor and the user, and falls within the scope of adjustment of my country's "Contract Law". In the first instance, the two infringement defendant companies compensated the plaintiff’s company for economic losses and reasonable costs of safeguarding rights totaling 500,000 yuan, and stopped the infringement.

The judgment in this case clarifies the legal liability for infringement of open source software licenses. On the one hand, it can stop infringements in a timely manner and prevent others from improper use of open source software; on the other hand, it can effectively protect the interests of licensors and enable them to continue to create Motivation to promote source code sharing and knowledge dissemination.

Relevant interpretations of industry lawyers on GPL3.0

Open source software is a kind of software subject to restrictions on the use of open software authorization, and its specific authorization method is implemented in accordance with the corresponding open source license ("Open Source Agreement"). Common open source agreements mainly include GPL, LGPL, MPL, MIT, BSD, Apache, and various open source agreements may have different versions.

In order to reduce research and development costs, relevant parties ("licensees") may choose to use open source software ("original version") when developing software, and form self-developed products ("derivative works") through the transformation of open source software.

Regarding the case of the GPL3.0 open source agreement ("GPL Agreement" and "Agreement") and several issues concerning the use of open source software by licensees, from a legal point of view, the possible issues are mainly as follows:

Question 1: Does the use of open source software need to comply with open source agreements;

Question 2: Do you need to disclose the source code of self-developed software when using open source software;

Question 3: The impact of using open source software on the protection of intellectual property rights of self-developed software;

Question 4: The use of open source software to protect trade secrets and the impact of commercial competition.

It is generally believed that an open source agreement is a license agreement between the licensor and the licensee regarding the use of software. Although my country’s laws do not have clear and targeted provisions on this, in judicial practice, the court will quote the provisions of the GPL agreement in relevant judicial precedents, and it does not deny that the open source agreement is in the parties (licensor, authorized person). Between the effectiveness and binding force on the parties.

Based on the acquiescence of my country's relevant judicial precedents on the effectiveness of the GPL agreement, if a party violates the GPL agreement, he needs to bear legal responsibility.

This penalty, as the first case of the legal effect of the GPL3.0 agreement, is a good start for the standardized governance and healthy development of the domestic open source ecosystem in the future.