GPL3.0 License Software Copyright Dispute Case Analysis Continued One: Is VirtualApp still open source software?

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

In the previous article " GPL3.0 License Software Copyright Dispute Case Analysis ", we analyzed the following legal issues:

Open source software author determination and subject eligibility issues, the legal nature of the GPL open source license, the consequences of violating the license and infringement compensation. We concluded that the person who signed the name is the author of the open source software and can be sued in a Chinese court; the GPL3.0 license is considered a contract, and the user violates the terms of the license and needs to bear the liability for breach of contract or tort.

The friends feedback that they want to know more about the ins and outs of this series of cases, so they decided to analyze the two main cases cited above, and then put forward a few questions and answers for the reference of the friends.

As the first part of the sequel, we will focus on a core question: VirtualApp or not open source software .

First, the two cases we are talking about are:

1. Jining Luohe Network Technology Co., Ltd. v. Fujian Fengling Chuangjing Technology Co., Ltd., Beijing Fengling Chuangjing Technology Co., Ltd. and Shenzhen Tencent Computer System Co., Ltd., a case of infringement of computer software copyright, Case No. (2019) Yue 03 Min Chu No. 3928, the judgment date of Shenzhen Intermediate People's Court is April 30, 2021, and henceforth referred to as " Case ".
2. Jining Luohe Network Technology Co., Ltd. v. Guangzhou Wanyou Network Technology Co., Ltd., Shenzhen Guanzhunhang Technology Co., Ltd., Shenzhen Austen Technology Co., Ltd., Xiangyun Industrial (Shenzhen) Co., Ltd. in the case of infringement of computer software copyright, case No. (2019) Yue 73 Zhi Min Chu No. 207, the judgment date of Guangzhou Intellectual Property Court is September 29, 2021, henceforth referred to as " Play Friends Case ".

The plaintiffs in these two cases are all Luohe companies, and they all sued that the source code of the Android sandbox program developed by themselves, VirtualApp, was improperly used by different companies.

1. What is VirtualApp and where does it come from.

Based on the evidence in the two judgments and the facts found by the court, we arrange them in chronological order as follows:

1. On July 7, 2016, Lody uploaded the initial source code of VirtualApp on the Github website with a total of 31097 lines. The README file recorded "About Author: Lody ( [e-mail] ), and the LGPL3.0 agreement was attached the next day;
2. On September 10, 2016, the LICENSE.txt file recorded the replacement of the LGPL 3.0 license agreement with the GPL 3.0 license agreement;
3. On September 23, 2016, Lody marked "VirtualApp has applied for a national patent and obtained software copyright protection. When your behavior constitutes a conflict of interest for the project or the project author, we will pursue legal responsibility";
4. On January 24, 2017, Lody marked "You have no right to use the project for free. VirtualApp has applied for a national patent and obtained software copyright protection. When your behavior constitutes a conflict of interest for the project or the project author, we will pursue legal responsibility. If you want to use this project, please contact the author";
5. On March 12, 2017, Lody stated that "You do not have the right to put the app module of VirtualApp on the software market as your own app. Once found, you will understand the consequences. You need authorization to use the lib code, and VirtualApp has applied for a national Patent, and obtain software copyright protection, when your behavior constitutes a conflict of interest for the project or the project author, we will pursue legal responsibility. If you need to use this project, please contact the author”;
6. On July 3, 2017, Lody stated that "when you need to use VA for commercial purposes, authorization is required, so please be sure to contact the author (see below for contact information)";
7. On August 8, 2017, shareholders Lody (namely Github registered user Lody), Zhang Lu, Zhang Miao and Guangzhou Yilong Investment Management Enterprise (Limited Partnership) established Luohe Company;
8. On September 12, 2017, Lody stated that "You have no right to upload the APP module of VirtualApp to the software market as your own APP. Once found, we will sue or call the police. When you need to use VirtualApp for commercial purposes, please be sure to Contact the person in charge of the authorization QQ/WeChat 1 * . Purchasing the authorization is the greatest support and encouragement for us, you will get our 1vs1 technical support and assistance, and get the unopened commercial version";
9. On October 8, 2017, Lody stated that "VA is currently widely used in technical fields such as dual-opening/multi-opening, application market, analog positioning, one-key modification, privacy protection, game modification, automated testing, non-perceptual hot update, etc. It is by no means limited to this, Android itself is an extremely open platform, and the feature of running APK without installation opens up infinite possibilities - it all depends on your imagination. When you need to use VirtualApp for commercial purposes, be sure to Contact QQ1 to purchase a commercial license";
10. On October 29, 2017, Lody deleted the GPL3.0 agreement;
11. On November 8, 2017, Luohe company obtained the computer software copyright registration certificate (registration number is 20177SR613528), recording the software as "Luohe (VirtualApp) plug-in framework virtual engine system [abbreviation: VirtualApp] V1.0" Development completion date February 28, 2015, first published July 18, 2015;
12. On December 7, 2017, Lody stated that "VirtualApp open source code can only be used for personal technical research and development of ideas. When you need to use VirtualApp for commercial purposes, please be sure to contact QQ1 to purchase a commercial license;
13. The CHINESE.md file of the update submitted by Lody on December 30, 2017 (corresponding to the Git code is 8e6d9cd925af55b53a7e93046c469dd69676c38b) states that "VirtualApp (Chinese name Luohe) will be officially corporatized in August 2017. When you need to use VirtualApp for For commercial use, please be sure to contact QQ to purchase a commercial license.

The key points can be summarized as:

1. Upload source code to Github;
2. The source code is licensed under the LGPL3.0 license;
3. Modified to GPL3.0 license;
4. Add commercial payment terms;
5. Claimed to have obtained a patent; Note: The lawyer used the keywords Lody, Lody, and Virtual App to find no relevant patents in the system of the State Intellectual Property Office.
6. Set up a company;
7. Remove the GPL3.0 license;
8. Obtain a software copyright registration certificate;
9. Stop updating Github.

2. Is VirtualApp still open source software?

I understand what Luohe and the author Lody have done, now back to our core question, is VirtualApp still open source software.

First of all, VirtualApp is not open source software.

VirtualApp uses the LGPL3.0 permissive license at the beginning, which can be combined with the GPL3.0 agreement. The courts in both cases held that the VirtualApp used GPL3.0, and in fact it should be considered that LGPL3.0 is used in combination with GPL3.0, and the specific use follows the GPL3.0 license.

Secondly, after Lody's various operations, VirtualApp is still not open source software.

1. Inclusion of commercial payment terms: The court in Fengling did not review the inclusion of commercial payment terms. However, in the Play Friends case, the court held that "Luohe's commercial use restriction reservations limit the purpose of users' use of their source code, which also limits the scope of users, that is, only users for non-commercial purposes can use its source code, which obviously contradicts the "copyright" feature of the GPL V3 agreement. This restricted reservation is not one of the six supplementary additional terms that can be added as stipulated in Article 7. It should be a non-licensing additional term and belong to "Further Restrictions" in Article 10, therefore Luohe has no right to add a commercial use restriction reservation to the involved VirtualApp project under the GPL V3 agreement."
   In this regard, we believe that the inclusion of commercial payment terms does not necessarily conflict with GPL3.0. Although the GPL3.0 license requires that no royalties be charged, the scope of application is open source versions, and it is possible to charge royalties for commercial versions. According to the GPL3.0 agreement, source code publishers can ask users to pay to obtain copies, and can also ask users to pay to obtain corresponding services or derivatives. The GNU website states that "You can charge people to give copies of your software. But you can't ask people to pay you when they get copies from other people." So adding a commercial payment clause doesn't of course lead to VirtualApp from Open source software becomes a commercial software.
2. Delete the GPL 3.0 license; in both cases, the trial court held that according to the terms of the GPL 3.0 license, as long as a certain software version joins the GPL V3 agreement, the GPL V3 agreement cannot be deleted at will, and the source code of this version will remain permanently Open source, even if the authorizer deletes it, there is no retrospective force, and it does not affect the continued application of the previous version. So removing the license will not affect VirtualApp's continued application of the GPL3.0 license.

Therefore, both courts finally determined that the software version in dispute in the case is an open source version, and VirtualApp is still an open source software.

3. Commercialization of Open Source Software

Whether open source software is commercialized or not has always been a topic worthy of discussion and research. The GPL license enforces the requirement for users to open source, which makes the commercialization of open source software licensed under the GPL license different.

In the article "Look at how Chinese courts treat the GPL agreement", Mr. Wei raised the question "If the author uses the GPL, the author cannot change other agreements, then who else is willing to use the GPL? Besides, we often see The dual authorization of "GPL authorization and commercial authorization coexist", doesn't it also violate the GPL requirements?"

In fact, GPL licensing and commercial licensing can coexist. First, the premise of coexistence is that there is an open source software licensed under the GPL license. Second, commercial licensing builds on existing open source versions and sells commercial licenses and value-added services. A typical case of dual license dual license is Oracle's MySQL software, which has been widely discussed as early as when MySQL launched the first enterprise paid version. In addition to the open source version of MySQL licensed to developers under the GPLv2, Oracle also sells commercial licenses for commercial versions of the software to enterprise users. As we discussed above in the discussion of commercial payment terms, the GPL 3.0 license does not object to open source software source code publishers requiring users to pay for a copy. At the same time, Oracle also provides a series of value-added services after payment, which are also allowed by the GPL3.0 agreement.

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[2] Licensing Information User Manual – MySQL
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[4] https://www.mysql.com/about/legal/licensing/oem/ , accessed on February 20, 2022;
[5] https://betanews.com/2007/08/10/mysql-to-distribute-commercial-source-code-for-paying-customers-only/ , accessed on February 20, 2022;