Case Analysis of GPL3.0 License Software Copyright Disputes

Author: Attorney Chen Yuanxi, partner of Haihua Yongtai Law Firm

The Ministry of Industry and Information Technology's "14th Five-Year Plan" Software and Information Technology Service Industry Development Plan proposes the goal of "prospering the domestic open source ecosystem". my country will vigorously develop domestic open source foundations and other open source organizations, improve open source software governance rules, and popularize open source software. culture. The governance and ecological construction of open source software is inseparable from the legal protection of the copyright of open source software authors.

This article will analyze the recent practice cases of Chinese courts on the GPL3.0 license, and preliminarily discuss the nature and legal effect of open source licenses under Chinese law, compensation for open source software infringement disputes, etc., in order to protect open source software developers and users. Provide reference for your own rights and avoid disputes.

1. Determination of Open Source Software Authors and Subject Eligibility

1. Open source software is protected by copyright law

Computer software is a work clearly stipulated in the Copyright Law, and the author shall enjoy the copyright regardless of whether the work is published or not. Open source software, as a kind of software that has been published on the network platform and can be accessed by users, enjoys copyrights including publication, signature, modification, reproduction, and network information dissemination. Therefore, authors of open source software, as copyright owners, can protect their legitimate rights and interests in accordance with the law, and require the infringer to bear corresponding responsibilities when infringed.

2. The signer is the software author

According to my country's current "Copyright Law", if there is no evidence to the contrary, the signature on the work is the author. The Computer Software Protection Regulations also stipulate that the copyright of computer software belongs to the software developer. If there is no response certificate, the natural person, legal person or other organization that signs the software is the developer.

Authors can prove their rights in other ways than attribution. According to Article 7 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases": "The manuscripts, originals, legal publications, copyright registration certificates, certifications issued by certification agencies, and the right to acquire rights provided by the parties concerned. The contract, etc., can be used as evidence.” Among them, the author can submit an application for copyright registration at the China Copyright Protection Center (National Copyright Registration Portal), obtain a registration certificate, and specify the name of the work, completion date, publication date, location, authorship, etc. Attribution of rights and as initial proof of ownership of rights when they are asserted.

In (2018) Jingminzhong No. 471 Judgment, that is, Digital Paradise (Beijing) Network Technology Co., Ltd. v. Youzi (Beijing) Technology Co., Ltd. and others in the case of computer software copyright infringement (hereinafter referred to as the "Digital Paradise case"), Digital Paradise The company has carried out copyright registration and obtained registration certificates for the three plug-ins in the HBuilder software developed by the company, namely the code input method plug-in, the real machine running function plug-in, and the modification and viewing function plug-in. The court recognized that Digital Paradise has the right to claim copyright.

3. Is the Github project person eligible as the subject of the lawsuit?

Github's rules require the project owner to allow any user to view and copy the contents of the repository. According to the rules of the GitHub website, after an open source software project person uploads the software source code to the website, if the page and repository are set to be displayed publicly, it means that the project person grants each user a non-exclusive, global license to allow them to use the GitHub service. , display and execute content. In addition to Github's default rule requirements, project owners can further grant users more rights in the form of licenses.

Github rules and the characteristics of open source software allow these users to fix bugs or add functions of open source software, feed back the revised source code to the project person, and send a pull request to the project person. If the project person agrees, the revised source code will be officially Merged into the source code of the open source software to become a new version. These users are marked as contributors on the Github site.

In (2019) Yue 73 Zhi Min Chu No. 207 Judgment, that is, Jining Luohe Network Technology Co., Ltd. v. Guangzhou Wanyou Network Technology Co., Ltd., etc. in the computer software copyright infringement dispute (hereinafter referred to as the "Player case"), the court held that Luo Box's lawsuit does not require the consent of the other 32 contributors. The court held that the existing evidence could not determine that VirtualApp was a cooperative work. Even if it is a cooperative work, since the contributors are distributed all over the world, if the authorization of all contributors is required to file a lawsuit, it will make it impossible to file open source software rights protection. The court found that Playmate had infringed the copyright of the open source version of the software, and held that if other contributors could claim compensation from Luohe for division of compensation.

In this regard, the author of this article believes that there is a certain controversy: Luohe claims that the copyright of the open source version of VirtualApp, which has obtained the registration certificate, is infringed, which already contains the code modified by 32 contributors. The publication and modification of the controversial work in this case are both Through the Github website, the consent of the contributor can also be obtained through this website or other methods. There is no evidence that the contributor signed an agreement with the project person to authorize the project person to sue on his behalf, and there is no evidence that the Luohe company has carried out this effort. The court held that the contributor was not the copyright owner, and at the same time allowed the contributor to claim the division of compensation. The author of this article believes that there is a certain contradiction. By identifying more than 90% of the code provided by the project person, denying the contributor's contribution to the originality of open source software, and treating the project person as a single copyright owner will greatly discourage the enthusiasm of the contributors and is not conducive to the development of the open source community ecology. In practice, we find that large open source projects often sign contributor licensing agreements to resolve licensing issues.

Second, the legal nature of the GPL open source license

GNU General Public License, the English GNU General Public License, abbreviated as GNU GPL or GPL, is one of the most popular software licenses in the field of open source software.

The GPL3.0 license is a copyleft license. The GPL3.0 license allows open source software users to freely copy, distribute, modify and redistribute the open source software, but requires users to publish the corresponding source code using the GPL3.0 license. Therefore, by using the GPL3.0 license, the author not only grants some copyrights to users, but also sets the obligation for users to open source under the same conditions.

Chinese precedents tend to recognize the GPL3.0 license as a conditional contract. In the Play Friends case, the Guangzhou Intellectual Property Court adopted the "offer theory" and held that the GPL 3.0 license is a contract concluded between the software right holder and the user, and is an atypical, written format contract concluded through behavior, among which the open source software Publishing is regarded as an offer, and user use is regarded as a promise, and the contract is established when it is used. First, according to the relevant laws and regulations of the Civil Code and earlier implemented, it can be considered that the use of the GPL3.0 license by the author of open source software is a conditional civil legal act; secondly, in (2019) Yue 03 Min Chu No. 3928 In the judgment, that is, Jining Luohe Network Technology Co., Ltd. v. Fujian Fengling Chuangjing Technology Co., Ltd., in the case of infringement of computer software copyright (hereinafter referred to as the "Fengling case"), the Shenzhen Intermediate People's Court held that the GPL3.0 license The content and form of the certificate have the characteristics of a contract.

3. Consequences of Violation of License and Infringement Compensation

1. Consequences of violating the GPL3.0 license

In the "Fengling Case", the court held that "the conditions of use stipulated in the GPL3.0 agreement (such as open source code, marking copyright information and modifying information, etc.) .Once the user violates the prerequisites for use, the GPL3.0 agreement will be automatically terminated between the licensor and the user, and the license obtained by the user based on the agreement will be terminated immediately."

The author of this article believes that, according to the text of the GPL 3.0 license, any attempt to disseminate or modify the work in violation of this license is invalid and will automatically suspend the user's rights through this license; however, the license also stipulates that when The authorization can be reinstated when the user no longer violates the license. Therefore, although we can regard the GPL3.0 license as a conditional contract under Chinese law, when the user violates the preconditions of the license, the license contract is automatically terminated, rather than directly terminated and the contractual rights and obligations are eliminated.

Regardless of whether the court considers the termination of the license, or the suspension that can be restored, after violating the GPL3.0 license, the user's behavior of copying, using, publishing, and modifying the open source software will lose the source of rights, which constitutes copyright infringement.

2. Infringement damages

According to the 2010 edition of the Copyright Law, the amount of damages for copyright infringement shall be determined according to: 1. Actual losses; 2. Illegal gains, including reasonable expenses or compensation at the discretion of the court within 500,000 yuan.

my country revised the "Copyright Law" in 2020, in which the compensation for copyright infringement damages has been greatly revised: 1. The statutory compensation has increased the compensation that can refer to the royalties; 2. The mechanism of punitive damages has been introduced If the circumstances are serious, one to five times the statutory amount of compensation may be compensated; the applicable punitive damages must meet: the infringer intentionally infringes the copyright, the circumstances are serious, and the actual loss, illegal gains and royalties are difficult to calculate; 3. The amount of compensation is determined From 500,000 yuan to more than 500 yuan and less than 5 million yuan.

Since the facts of the cases all occurred before 2020, in the "Digital Paradise Case", "Player Case" and "Fengling Case", the court ruled that the defendant should pay the plaintiff a total amount of 500,000 yuan. Almost all of these cases were adjudicated in accordance with the maximum amount of the law in force at the time. It is foreseeable that in the future, the compensation for copyright infringement of open source software will likely be judged at five million yuan, and may even make the defendant pay punitive damages far exceeding the illegal gains.

Fourth, the conclusion:

The release, sharing, modification and redistribution of open source software, and even commercial use, are inseparable from the cornerstone of the open source agreement. The GPL3.0 license, as one of hundreds of open source protocols, has been recognized and protected by Chinese courts. In the jurisprudence of Chinese courts, we have seen the chaotic behavior of well-known open source software project parties in the use of open source agreements, and open source software users have also been punished for copyright infringement and violation of open source agreements. As participants of open source software, both developers and users of open source software should pay attention to the selection and use of open source protocols.

Enterprise users of open source software should take the initiative to establish a compliance system and do a good job of open source compliance, understand the rights and obligations of various open source agreements, do a good job of pre-, inter- and post-event review, and review the use of open source software within the enterprise to avoid unintentional If the infringement is found, it should make up for it in time, and take remedial measures such as reconciliation with the author and purchasing a commercial version license, so as not to increase its own responsibility and pay a high price.

Reference:
[1] https://www.gnu.org/licenses/gpl-3.0.zh-cn.html , Accessed on: February 16, 2022
[2] https://en.wikipedia.org/wiki/GNU Public License, Accessed: 2/16/2022
[3] https://jxself.org/translations/gpl-3.zh.shtml , accessed on 16 February 2022
[4] "Civil Code of the People's Republic of China"
[5] https://ipc.court.gov.cn/zh-cn/news/view-842.html , accessed on February 16, 2022
[6] An Empirical Study on the Status Quo of Open Source Software Copyright Infringement, Wu Mengchen, Qinghai University for Nationalities, "National Policy", 2021-06
[7] Circular of the Ministry of Industry and Information Technology on Printing and Distributing the “14th Five-Year” Software and Information Technology Service Industry Development Plan, http://www.gov.cn/zhengce/zhengceku/2021-12/01/content_5655205.htm , accessed on 16 February 2022
[8] Copyright case丨GPL3.0 agreement is "highly contagious"! Derivative works, etc. must also follow the agreement to open their source code, https://mp.weixin.qq.com/s/fdSvTTdkv-XDNYbXQeJjSA , access date: February 16, 2022
[9] Alibaba Open Source Individual CLA