[HN Gopher] French Appeal Court affirms decision that copyright ...
___________________________________________________________________
French Appeal Court affirms decision that copyright claims on GPL
are invalid
Author : user5994461
Score : 268 points
Date : 2021-08-30 11:28 UTC (11 hours ago)
(HTM) web link (thehftguy.com)
(TXT) w3m dump (thehftguy.com)
| user5994461 wrote:
| Full title too long for HN "French Appeal Court affirms decision
| that copyright claims on GPL are invalid; must be enforced via
| contractual dispute"
|
| There was a brief HN discussion on the initial ruling 2 years ago
| https://news.ycombinator.com/item?id=24478769 the case just went
| to appeal earlier this year.
|
| Note that the last HN discussion never really happened, it
| gathered both too many votes and flags in 20 minutes and got
| automatically hidden, only to be unblocked by a mod later. It
| would be great if you could refrain from flagging this time, even
| if the ruling comes as a culture shock to you.
|
| I assure you it is not clickbait. The authors of GPL software are
| really spending years and a fortune in court only to have all
| their copyright claims dismissed. The ruling passed the High
| Court (TGI), the Appeal Court and the CJUE.
| andi999 wrote:
| Did they ask the FSF to chip in?
| user5994461 wrote:
| What for? What's the relevance of the FSF here?
|
| Well, if you really want an anecdote with the FSF. I happen
| to have one :D
|
| The court used the French GPL translation from the FSF. The
| very translations saying that they are not official
| translations and cannot be used in court. Well, the FSF
| doesn't get to decide what's admissible in court.
|
| https://www.gnu.org/licenses/translations.en.html
| phaemon wrote:
| That page doesn't say it can't be used in court. In fact,
| the word "court" doesn't even appear on the page.
|
| Do you have an anecdote that isn't a lie?
| simiones wrote:
| The page is very clear that it only considers the English
| document to constitute the real contract, and all
| translations as helpers, not as legal documents:
|
| > The FSF does not approve license translations as
| officially valid. The reason is that checking them would
| be difficult and expensive (needing the help of bilingual
| lawyers in other countries). Even worse, if an error did
| slip through, the results could be disastrous for the
| whole free software community. As long as the
| translations are unofficial, they can't do any legal
| harm.
|
| > ...
|
| > We give permission to publish translations of GNU
| licenses into other languages, provided that:
|
| > You label your translation as unofficial to inform
| people that they do not count legally as substitutes for
| the authentic version (see below for how to do this).
| phaemon wrote:
| Yes, that is what it says. Not "cannot be used in court".
| Just that they consider the English version
| authoritative.
|
| Are you trying to tell me you can't tell the difference
| between these statements?
| kbenson wrote:
| _do not count legally as substitutes for the authentic
| version_ isn 't the exact same wording, but I don't think
| it's a leap to go from "this is not a legal document" to
| "this is not to be used in court" when referring
| specifically to contracts and licenses.
|
| It's at least no more of a leap than telling someone
| they're lying when they're paraphrasing, and in a way
| many people think is fairly accurate.
| phaemon wrote:
| Ok, I didn't realize anyone would really think that only
| legal documents could be used in court. It seems an
| utterly bizarre idea to me.
|
| Did you think that an eyewitness account of a murder
| would be inadmissible because it's not a legal document?
| pessimizer wrote:
| You're being oddly pedantic. The translations aren't
| authorized by the FSF to be used as the translation of
| their licenses i.e. they entirely reserve the right to
| dispute the text of any of them.
|
| You can use an empty soda can in court. The FSF probably
| _hopes_ that they are used in court as a starting point.
| xxpor wrote:
| That's not that unusual. If you have a contract written in
| something other than English and it ended up in a US court,
| the court would probably look at this translation and
| essentially be like, well, even though it says that it was
| translated by a non-party to this case and there's no
| reason to believe it's intentionally mistranslated, so good
| enough. Especially if the parties to the dispute didn't
| have any objections.
| foxfluff wrote:
| "That is to conclude, by having a contract (a license is a
| contract), you lose your rights to pursue any IP/copyright claims
| (the two are exclusive in French law)."
|
| So hold on..
|
| Virtually all software comes with a license of some sort. This
| seems to be required in EU since otherwise you don't have the
| right to use software.
|
| And now courts in France think that if there's a license
| (=contract) involved, then copyright cases are dismissed.
|
| Does that mean I can wipe my butt with the French equivalent of
| copyright law (Droit d'auteur), as far as software is concerned?
| kergonath wrote:
| Only if the software does not have a license. It does not mean
| that copyright does not exist; it's just one or the other.
| Tobu wrote:
| Interestingly, in another decision, that did go as high as the
| Cour de Cassation, Microsoft did get a license violation treated
| as counterfeiting, with higher monetary damages.
| - https://www.legalis.net/jurisprudences/cour-de-cassation-ch-
| criminelle-arret-du-19-avril-2017/ -
| https://www.legalis.net/actualite/contrefacon-de-windows-
| confirmation-du-mode-de-calcul-de-la-reparation/
|
| Found via https://linuxfr.org/users/spacefox/journaux/une-
| violation-de...
|
| More here on the Entr'ouvert vs Orange case: -
| https://www.legalis.net/jurisprudences/cour-dappel-de-paris-
| pole-5-ch-2-arret-du-19-mars-2021/ -
| https://www.legalis.net/actualite/pas-daction-en-contrefacon-
| pour-le-non-respect-dune-licence-de-logiciel/ -
| https://www.legalis.net/jurisprudences/tgi-de-paris-3eme-ch-3eme-
| section-jugement-du-21-juin-2019/ -
| https://www.legalis.net/actualite/non-respect-dune-licence-libre-
| irrecevabilite-de-laction-en-contrefacon/
| user5994461 wrote:
| Interesting case https://www.legalis.net/jurisprudences/cour-
| de-cassation-ch-...
|
| Looks like it's about someone selling Windows, without paying
| Microsoft and/or without having a reseller partnership with
| Microsoft. The article is sadly very short and lacking any
| details.
|
| There is no contract involved depending on the circumstances.
| dathinab wrote:
| I think the difference is that in the Windows case the
| "person in question never had a license" (or well enough
| valid licenses).
|
| On the other hand in this case there was a license given out
| (to every one) but it's terms where breached. Licenses are
| contracts so breaches ending up on contract curt isn't
| absurd. The only reason it doesn't happen in the US is the
| automatic Termination of the license/contract if it's
| breached. But I guess this is where the court decided that a
| automatic full termination in the specific way combined with
| a lawsuit based on the after effects of the termination isn't
| valid/doable/...
| SolarNet wrote:
| If the person copied it from a legitimate version of
| windows that they originally bought, couldn't one then
| argue that they did have a license that they then violated?
|
| I guess the point I am making is that I don't think that
| line tracks.
| dathinab wrote:
| > couldn't one then argue that they did have a license
| that they then violated?
|
| It's a thin line, but I would say no as they only had a
| license for a single thing, while GPL is a license for
| any amount of usage. What was violated was the context of
| usage, not that illigal copies where made (I mean copies
| => copyright ;=) ).
|
| But I had similar thoughts, it's a really thin line.
| user5994461 wrote:
| Found more info:
|
| If I understand alright, it's about somebody selling 13 656
| illegitimate copies of Windows.
|
| Microsoft went all the way to cour de cassation because they
| wanted to get full price for each copy and the court wanted
| to use bulk price to estimate damages. Microsoft won the case
| the 3 times, they were just not satisfied with the damages.
|
| The ruling of the cour de cassation is really about denying
| microsoft the full price and explaining how to calculate
| damages.
| 6gvONxR4sf7o wrote:
| FYI when you format links that way, they aren't clickable. I
| think it's because you're indenting them which makes them parse
| as code.
| db48x wrote:
| It's really a lot of work, but if you select one and right-
| click on it, then you can choose to open it in a new
| tab/window/etc.
| anovikov wrote:
| And these people will go around asking why there is so little
| good software built in EU and why is funding for startups so
| scarce.
| dathinab wrote:
| France is not the EU.
|
| France law applies in France, not any other EU country.
|
| Rulings likely would have been very different in many of the
| other EU countries.
| goodpoint wrote:
| On the contrary, the majority of FLOSS is developed in EU.
| myWindoonn wrote:
| It's too bad that AGPL wouldn't have been more effective; this
| seems like a dead end for copyright-based copyleft in France.
| We'll have to make extra effort to phrase things in terms of
| contract-based copyleft.
|
| Although, doesn't this suggest a meeting of the minds? Free
| Software is usually proffered and consumed without such a
| meeting. So was a contract actually formed? I'm skeptical.
| yorwba wrote:
| This article has me confused about the legal status of licenses
| in US copyright law. Are they not contracts? I mean, the GPL
| promises the recipient something (the right to make copies of a
| software) in return for something else (the source code for any
| modifications). That smells like a contract to me.
| unnah wrote:
| It seems that unlike in civil law countries, in common law
| countries such as the UK and US, a license is a separate legal
| category from a contract. A license can be interpreted as a
| contract as well, but you can make a "bare license" that is
| simply a grant of permission and not a contract all. In civil
| law countries such as continental Europe, all copyright
| licenses are interpreted as contracts.
|
| My understanding is based on this LWN article summarizing the
| opinions of several legal experts on the subject:
| https://lwn.net/Articles/747563/
| [deleted]
| user5994461 wrote:
| How about I make a second article to explain licenses vs
| contracts in US and the rest of the world?
|
| Your question went to US court in 2017. I wanted to cover that
| briefly but the blog is already quite long without getting into
| more specifics about licenses in the US.
| twooster wrote:
| Would this be fixable by adjusting, somewhat, the terms of the
| GPL? If the issue is that this is a contractual violation, would
| it be possible to put preconditions before granting a license in
| the first place -- such as requiring that legal claims for both
| copyright violation _and_ contractual violation are explicitly
| allowed before the license is granted?
| bluGill wrote:
| This case has both parties in France so the courts will
| probably rule that the license was made in bad faith since it
| isn't valid in France, I have no idea what the court will do
| after that. (in the US the courts will look down on a license
| made in bad faith, I have no idea about France)
| [deleted]
| webmobdev wrote:
| In my opinion no. France doesn't recognize copyright for
| software the same way the US does. And since an end user
| agreement is essentially a generic one-sided contract, the
| court can reject any clauses that it feels is over reaching.
| user5994461 wrote:
| The license already has preconditions. That's part of the
| problem.
|
| To determine whether there is a violation (copyright or
| anything), it first requires to determine whether the
| conditions are respected, which first requires to determine
| what are the conditions, which first requires to interpret the
| entire contract to determine the obligations and conditions and
| everything on both parties.
|
| In software terms, you've got a deadlock, can't consider
| copyright without considering the contract. (This plays really
| poorly in practice with these being different claims going to
| different courts).
| [deleted]
| jrm4 wrote:
| Aha. Okay. So (even if you're super pro Free Software like me)
| this doesn't seem all that bad, I think -- the error was the
| small guys "going for the money," but the GPL was never much
| about money, it's about compliance with the license.
|
| Does this seem right? (Yeah, I am a lawyer, but also not French)
| black_puppydog wrote:
| I agree that the goal is to get people (actually mostly
| businesses) to comply with the license, but that is sadly tied
| to what the consequences are if you are found to be in
| violation.
|
| The requirement go through contract violation instead of
| counterfeit will in practice drastically reduce these costs,
| and thus the incentives for compliance, while at the same time
| reducing the incentive of the authors to even try defending
| their rights.
| jrm4 wrote:
| It can be, but as I recall, the crux of the whole router WRT
| story was the FSF or whoever called up Linksys and said,
| "You're in violation, but calm down, we don't want money.
| Let's talk." -- and that is why we have e.g. DD-WRT, Tomato
| et al today.
| 6gvONxR4sf7o wrote:
| If you want to get compliance and legal cases take a decade,
| then damages need to cover a decade of lawyers, plus however
| much internal time/cost you spend on it over that decade.
| not2b wrote:
| Of course IANAL (je ne suis pas avocat). But in the end it may
| not matter. While GPL2 says "You are not required to accept this
| License, since you have not signed it. However, nothing else
| grants you permission to modify or distribute the Program or its
| derivative works", if a French court decides that if someone
| modifies and distributes a GPL covered work an enforceable
| contract is formed, it seems that the effect is the same: they
| have to comply with the terms.
| dathinab wrote:
| > they have to comply with the terms.
|
| They do but not doing so is a breach of contract not a
| copyright violation.
|
| What (at least in the US) makes it a copyright violation is the
| clause in the GPL contract which causes a automatic
| termination, and in turn makes you end up without a (previously
| existing but breached) contract granting you usage rights.
| Which _then_ can be used to sue you based on copyright law.
|
| But everything which causes the _then_ not to be reached causes
| you not to be able to sue based on copyright but only based on
| breach of contract.
|
| Through in practice this kinda could make a lot of
| copyright/licensing a joke (not just for software, but also
| e.g. art, movies etc.).
| denton-scratch wrote:
| It does matter: you can no longer sue for copyright violation,
| you can only sue for contract violation.
|
| If you violate a contract, the court will order compensation
| calculated to "make you whole" again - to restore things to how
| they would have been before the contract was executed
|
| The author seems to think there may be some issue for a writer
| of free software to demonstrate that he had been harmed by the
| violation; which wouldn't be an issue in a copyright suit.
| Well, at least here, copyright violation carries statutory
| damages.
|
| IANAL.
| R0b0t1 wrote:
| One of the strengths of the GPL is that companies don't like
| it for some reason. Since they don't like it, you can offer
| to sell them different licensing terms. That is what the
| damages are. It's not $0, it's all the money you missed out
| on from not being able to license your project.
| homarp wrote:
| https://en.m.wikipedia.org/wiki/CeCILL CeCILL (from CEA CNRS
| INRIA Logiciel Libre) is a free software license adapted to both
| international and French legal matters, in the spirit of and
| retaining compatibility with the GNU General Public License
| (GPL).
| bdauvergne wrote:
| Enforcing CeCILL in France on the same case would give the same
| result, if the court use the same interpretation of the law.
| That's not a problem with the license, it's a problem of the
| interpretation of copyright law (or "Droit d'auteur") in France
| with respect to copyleft license (any copyleft license with
| serious "obligations" to honor, so not BSD and alike, would
| give the same result).
| resplin wrote:
| In my opinion, the EU Public License is the most carefully
| thought out FLOSS license for European jurisdictions.
|
| https://en.m.wikipedia.org/wiki/European_Union_Public_Licenc...
| bdauvergne wrote:
| Hi, I'm one of the author of Lasso and the current maintainer,
| still working at Entr'ouvert. Ask me anything :)
| user5994461 wrote:
| Do you know if the company appealed to the cour de cassation?
| JPLeRouzic wrote:
| > _Orange Business Service used the library when developing a
| nationwide authentication service for France since 2005 (mon
| service public)_.
|
| I was at France Telecom R&D in a team working in authentication,
| and remember clearly admiring the work of entre'ouvert. At the
| time, I tested Lasso [0] on my own computer but never used it in
| real projects. Colleagues also found it very interesting.
|
| I tested many similar open source framework, such as
| SimpleSamlPhP which we used (and give credit) in a European
| research project.
|
| There was also a US company making an authentication framework in
| Java.
|
| > _My guess is a government contract like can go for 7 to low 8
| figures._
|
| That's as far as possible to the reality. The French state is
| constantly broke, for example it argued of IT problems to delay
| military staff pay by several month and delay providers payment
| by a year (Louvois), while making a law that forbids the private
| sector to delay payments more than two months!
|
| It asked to Orange to work for free on many topics and it
| probably did the same at other big companies.
|
| Never do business with the French state!
|
| [0] https://lasso.entrouvert.org/
| Ragnarork wrote:
| > The french state is constantly broke
|
| I'm curious as to why you'd say that and generalize for
| contractor work. Just as an example, Thales has landed multiple
| (and sometimes in a shady manner it seems) juicy contracts with
| the french government. Just looking it up quickly, you can find
| a 263 millions euros contract for radios for example. [0]
|
| Mismanaged, I wouldn't argue, but it sure spends a lot and is
| definitely not broke.
|
| [0]. (in French) https://www.tradingsat.com/thales-
| FR0000121329/actualites/th...
| PoignardAzur wrote:
| Yeah, the idea that the French government can't pay for IT
| seems really odd to me. They can definitely pull out the big
| contracts. It's just a sector with a lot of entrenched
| interests and regulatory capture.
| Ragnarork wrote:
| I personally think on the contrary that the French
| overspends too much and get kinda milked by big IT
| companies such as Thales that bank on the fact that no-one
| on the administration side can evaluate how much the work
| they're requesting actually costs.
| kergonath wrote:
| Yeah, mismanagement of these large projects is more of an
| issue than a lack of budget.
| derefr wrote:
| > The French state is constantly broke
|
| Is this an EU "we can't set our own monetary policy, we have to
| ask the ECB nicely to do it for us" thing? Because the idea of
| a state [of a country whose populace are not, themselves, in an
| economic crisis] being unable to just _make up_ some money to
| give people (in the form of e.g. T-bonds), sounds very strange
| to my ears--almost harkening back to a gold-standard era, where
| states that couldn't find precious metals to dig out of the
| ground could run out of raw materials to mint new coinage out
| of.
|
| Is it just that French treasury bonds aren't valued at at-
| least-par on the market? Is the government of France a
| bad/risky investment in the eyes of mutual-fund portfolio
| managers, something not to base the stable part of their
| portfolios around? (If so, what _do_ French portfolio-managers
| use as stability? Other governments' T-bonds?)
|
| (HN is probably not the place to get into an answer of the
| level of detail appropriate to these questions, so I'd
| appreciate links to resources answering them!)
| PoignardAzur wrote:
| _> Is this an EU "we can't set our own monetary policy, we
| have to ask the ECB nicely to do it for us" thing?_
|
| It's more of a "Screw you, we make the rules. What are you
| going to do, sue us?" thing. The French government is
| notoriously one of the worst employers in the country. Think
| unpaid overtime, hiring undocumented workers, low wages,
| arbitrary requirements, etc.
|
| It's not all bad, but french government agencies notoriously
| have a bit of a "labor laws don't apply to us" attitude.
| xxpor wrote:
| Really kind of funny/interesting how the US Federal Gov/US
| private sector are exactly swapped. The federal civil
| service (the military/intel agencies are a different story)
| has a very strong union and gov workers are very well known
| for doing exactly what is required, but nothing more ("good
| enough for government work"). Meanwhile, wage theft in the
| private sector is rampant.
| ElFitz wrote:
| > It's more of a "Screw you, we make the rules.
|
| > It's not all bad, but french government agencies
| notoriously have a bit of a "labor laws don't apply to us"
| attitude.
|
| That is sooo true. They give themselves exemptions on so
| many of their own laws and rules.
|
| Just as an example, junior med students working all
| mornings in public hospitals are paid below both minimum
| wage _and_ minimum internship compensation.
|
| In some hospitals, students realised they were paid less
| than the bonus security guards had for having a guard dog.
|
| They also run residents (7th+ years medical student) on
| schedules that violate both minimum recovery time and
| maximum weekly working hours. But they have their own
| special rule too.
|
| And that's just the public health sector.
|
| It's just so wonderful. I too wish I could make the rules
| for everyone.
| JPLeRouzic wrote:
| > _It 's more of a "Screw you, we make the rules. What are
| you going to do, sue us?" thing. The French government is
| notoriously one of the worst employers in the country.
| Think unpaid overtime, hiring undocumented workers, low
| wages, arbitrary requirements, etc._
|
| I think you made the best answer to explain my mind,
| thanks!
| jcelerier wrote:
| > Because the idea of a state [of a country whose populace
| are not, themselves, in an economic crisis] being unable to
| just make up some money to give people
|
| but, it's a debt, it _increases_ how broke is the state (in
| France it 's super super badly seen to have any debt, even if
| financially it is considered an asset, socially the word
| "debt" is considered as an absolute evil)
| dragonwriter wrote:
| > make up some money to give people (in the form of e.g.
| T-bonds),
|
| That's borrowing money.
|
| Making up money to give people is monetizing government
| finance (print money, spend money, no borrowing), which
| states with their own fiat currency can also do but
| traditionally refrain from and pretend to be using a
| commodity currency that needs to be borrowed because it makes
| people more comfortable (even when central bank operations
| end up amounting to just making up money and tossing it into
| the economy, in a more opaque manner; its kept both opaque
| and segregated from financing state operations.)
| kbenson wrote:
| > That's borrowing money.
|
| I get that's it's a bit different that what GP said, but
| isn't that also a viable solution for the problem of "not
| enough money right now to pay wages but in a few months
| there will be so wait for then." ? Borrow money, pay wages
| on time, when that lump of money comes in that would allow
| the paying of back pay, use it to pay off loan (or set it
| aside to pay off portions as they come due).
| Ericson2314 wrote:
| The EU has terrible economics baked into their
| constitution about governments taking on debt too --
| fiscal and monetary policy are both constrained.
|
| This should be close enough to chump-change that I am
| skeptical that's what's going on, but I cannot rule it
| out either.
| Ericson2314 wrote:
| To make this more concrete, the money printer moment in the
| US is when the federal reserve (central bank) buys the
| treasury bonds. The cash spent is recorded as a liability,
| and the bond as an asset in the balance sheet. The cash is
| created out thin air.
|
| It's all far more complex than needs to be, as PP says.
|
| I like to imagine some Feynman diagram situation where
| electrons and positrons can spontaneously emerge in pairs.
| The circulating money and the debt in the central bank
| balance sheet are the complementary pairs.
|
| The "quantity of money" is a non-concept because only the
| "net charge"---which is 0 (!) in theory---is preserved.
|
| -----
|
| The older mechanism is the treasury department making
| coins. The treasury department doesn't have any sort of
| corresponding "debt" written down when it does so. This is
| where the "trillion dollar coins" idea comes from.
|
| I suppose the net money is not actually 0, but whatever it
| was when we came off the gold standard? Who knows!
| cs2733 wrote:
| > The cash is created out thin air.
|
| Isn't that the case with every loan?
| Ericson2314 wrote:
| Yes! There are soft-money types that criticize
| charlatanism for characterizing the the government as too
| distinct from other credit-granting institutions
| (descriptively, not prescriptively).
|
| That said:
|
| 1. I am unaware of any fractional reserve requirement on
| the Fed, at least one that matters in practice.
|
| 2. I am unaware of any time frame in which the
| outstanding debt needs to be paid back.
|
| All this stuff is quite confusing though, I hope to
| understand the epicycles here more completely someday, if
| only to better argue the complexity is accidental, not
| essential.
| raverbashing wrote:
| > being unable to just make up some money to give people (in
| the form of e.g. T-bonds), sounds very strange to my ears
|
| Yes, they are free to sell debt. Doesn't mean it's a good
| idea to just get yourself in ever increasing debt.
|
| > Is it just that French treasury bonds aren't valued at at-
| least-par on the market?
|
| That's easy to google. And that is currently:
|
| > The France 10Y Government Bond has a -0.082% yield.
|
| http://www.worldgovernmentbonds.com/country/france/
|
| (Germany is -0.433% and the US is 1.289% for 10Y)
|
| So it's not so much an issue of "being broke" but more of
| budget priorities
| MinorTom wrote:
| > > The France 10Y Government Bond has a -0.082% yield.
|
| > (Germany is -0.433% and the US is 1.289% for 10Y)
|
| To put this into context: The Euro/ECB's interest rate is
| -0.50% and the USD/FED's interest rate is 0.25%
| fshbbdssbbgdd wrote:
| This seems deeply misguided if that's the reason the are
| delaying, because owed payroll is also a debt. If you can
| sell bonds with a negative interet rate, issuing bonds to
| pay your payroll debt whole makes you richer!
| pjerem wrote:
| > Yes, they are free to sell debt. Doesn't mean it's a good
| idea to just get yourself in ever increasing debt.
|
| A state is not a person and can get in debt indefinitely
| without never reimbursing capital since a state is immortal
| and can easily reimburse its previous debts with new
| credit.
|
| The only reason you, as a person, can not have that much
| debt is because the bank knows that you'll die, but rest
| assured they would gladly loan you millions if they knew
| you'd have revenues (taxes) forever.
|
| As a rule of thumb, it's wrong to think that a state should
| be managed like a home budget or like a company. They are
| very different (and complementary) economical actors with
| extremely different properties and goals.
|
| One could even argue that a state with too much spare
| assets can be seen as morally incorrect as long as
| unresolved socioeconomic issues exists. And they exists
| everywhere.
| nybble41 wrote:
| States are no more "immortal" than corporations. Plenty
| of states have either ceased to exist or repudiated their
| debts, leaving their creditors without recourse. If a
| state allows its debt to keep compounding, eventually it
| will find itself spending every cent of taxes it's
| capable of raising just to service the interest on that
| debt--and if anything should happen to shake creditors'
| confidence in its ability and/or willingness to repay
| those loans then the government becomes unable to borrow
| new money to repay its old debts and the entire Ponzi
| scheme collapses in on itself.
|
| Oh, and issuing new currency to repay the loans is
| functionally equivalent to defaulting on the debt.
| Creditors will not lend to you if they expect that you
| may attempt to pay them back with money which is worth
| significantly less than what you originally borrowed. A
| smart creditor will just index the payments to something
| you can't easily manipulate.
| george_ciobanu wrote:
| https://en.m.wikipedia.org/wiki/Vernor_v._Autodesk,_Inc.
|
| Has some intersection with this case
| math-dev wrote:
| A (incomplete) Tl;DR:
|
| The strategy that is well tried in the US is to go for
| counterfeiting/copyright, to seek the most damages. Copyright/IP
| law can carry significantly more damages, both in France and in
| the US, compared to a contractual dispute. (Remember that it's
| all about money!)
|
| For an IP violation, the court typically looks at the gain of the
| counterfeiter. That may be winning and executing the government
| contracts for Orange. My guess is a government contract like that
| can go for 7 to low 8 figures.
|
| For a contractual violation, the court typically looks at the
| loss of the victim. That may be some licensing fees and
| contracting fees for Entr'Ouvert. My guess is a library like that
| can go for 6 figures, while the bigger player selling OIDC/SAML
| solutions (Sun, ForgeRock, Oracle, Microsoft) go for an amount
| per user per year, easily adding up to 7 figures (but I don't
| think that one standalone library from a small vendor in 2003 can
| do that).
|
| Entr'Ouvert followed the counterfeiting strategy, they sued for
| counterfeiting and got dismissed. (I should stress out that it
| was a very reasonable strategy, similar law exist, it should have
| worked, it just didn't).
| Mikeb85 wrote:
| I'm just curious how anyone figures this example is a GPL
| violation? The GPL states (and Stallman has discussed and stated)
| that if an organization uses GPL code internally and never
| redistributes the code outside the organization, it's perfectly
| fine. Which seems to be this case. So why does anyone think it's
| a violation and what's the point of this article?
|
| Edit - also, the GPL is clearly a contract. Stallman has touched
| on copyright issues too, saying (for example) that a game can be
| open source but the assets still copyrighted. They're different
| concepts altogether.
| bdauvergne wrote:
| Hi, current maintainer of Lasso here; Orange bundled Lasso (a
| GPL library) with their internal authentication system at the
| time (called IDMP, itself made as an Apache module) to give it
| support for SAML then sold a license of the bundled software to
| the French state; they never distributed the source of the
| whole package, and they did not distribute the whole package
| under a GPL compatible license. Clear violation.
| mzs wrote:
| I thought Orange Business Services sold it to the French gov,
| did they not?
| toast0 wrote:
| Did the French government ask for source code or seek to do
| anything else the GPL allows only to have Orange refuse or
| block the move?
|
| That doesn't seem to be asserted in the article.
| zozbot234 wrote:
| Did they sell the _software_ to the French gov, or _deploy_ a
| managed service that only used this software under the hood
| (thus avoiding even the "public performance" part of
| copyright, that might otherwise apply to a SaaS deployment)?
| The distinction is quite critical to this case, if they did
| the latter it's no different than Amazon doing the same
| thing.
| Mikeb85 wrote:
| Using it for a service still isn't 'redistribution' as per
| the GPL. It still wouldn't be considered to have left the
| organization. It's perfectly fine use as per the GPL.
|
| And if it's the French government who contracted the whole
| thing, they're the original owner, not Orange, but either way
| it's fine (an owner giving access to a contractor to work on
| a program containing GPL code isn't considered redistribution
| either, nor is a contractor using open-source code in a
| project for a client).
|
| Edit - also even if Orange used it internally, then made the
| French government a service which uses it, as long as Orange
| simply re-sourced the code for the government it's fine. It's
| like Amazon selling hosted Linux images.
| user5994461 wrote:
| think: Orange makes software for the government, that the
| government pays for, that actually turns out to be existing
| software owned by someone else and under GPL license (which
| extends to the whole project and has other implications).
|
| That's very much the definition of counterfeiting.
| phendrenad2 wrote:
| So in France, GPL violations are not considered a copyright
| issue, they're considered a breach of contract. And since the
| court looks at the damage to the victim in breach of contract
| cases, which is hard to realistically imagine when the software
| is given away for free, this is some bad news indeed. Someone
| uses your GPL code, gets caught, pays a minimal amount in
| damages, and continues using it.
|
| I'm not a lawyer and stuff.
| R0b0t1 wrote:
| One of the strengths of the GPL is that companies don't like it
| for some reason. Since they don't like it, you can offer to
| sell them different licensing terms. That is what the damages
| are. It's not $0, it's all the money you missed out on from not
| being able to license your project.
| dathinab wrote:
| > So in France, GPL violations are not considered a copyright
| issue, they're considered a breach of contract.
|
| They are breach of contract in probably any country, but due to
| a automatic termination clause the breach of contract
| immediately leads to a copyright violation as you no-longer
| have usage rights as they where terminated.
|
| So it's always a breach of contract but in the US that breach
| of contract triggers a copyright violation where in France _in
| that specific case_ it did not.
|
| > to realistically imagine when the software is given away for
| free, this is some bad news indeed.
|
| The software is free under certain terms, so you would need to
| find a realistic price for software without such terms. Which
| might be hard for a small ad-hoc library, but should be very
| doable for any larger software project.
|
| > , and continues using it.
|
| This wouldn't work they would pay some amount of damages (see
| above) for their usage until then, but you also can terminate
| their contract and in turn they would need to stop using it or
| (as far as I understand) they then (and not before) could be
| sued for copyright violation.
| horsawlarway wrote:
| As an American reading through this, this has a distinct smell of
| French courts ruling in ways favorable to the national ISP
| because it might cost the government money to do otherwise.
|
| Basically - this looks pretty bad from my perspective.
|
| Anyone with more context who can explain how copyright could
| exist in France if all licenses are considered contracts instead?
| polote wrote:
| > to the national ISP
|
| It is the previous national ISP. I'm not even sure it has ever
| been a private ISP. It's completely private now [0] (but still
| owned at 30% by the government) and they have three big
| competitors: SFR, Iliad, Bouygues
|
| [0] https://www.google.com/search?client=firefox-b-d&q=EPA:+ORA
| Veen wrote:
| Or it's French courts making a ruling which is compatible with
| French law and incompatible with an American's understanding of
| what French law should be. You can read about it here [i].
|
| The point is that behavior contrary to the terms of a license
| is considered a contract breach and not a copyright violation,
| so Orange didn't violate copyright. It's yet to be determined
| whether they violated the terms of a contract (the court in
| question can't make that determination.)
|
| [i]: https://en.wikipedia.org/wiki/Copyright_law_of_France
| horsawlarway wrote:
| So if you're aware of the specifics here, help me out with
| the question I asked.
|
| How can you possibly have a valid copyright for software in
| French law if all license terms are considered contract
| breaches?
|
| From your own link... - >>The legal position was resolved by
| the transposition of May 14, 1991 EU Directive into French
| law: computer programs and any associated preparatory works
| qualify for copyright protection in France as in other
| European Union jurisdictions.
|
| Once a work has been published, the author cannot prevent:
|
| 1. Private family performances.
|
| 2. Copies for the private and personal use of the copier.
| This provision does not apply to works of art, computer
| programs (where a single safeguard copy is allowed, Art.
| L122-6-1-II) and databases.
|
| 3. In cases where the name of the author and the source are
| clearly indicated,
|
| a) Analyses and short citations justified by the critical,
| polemical, scientific or pedagogical nature of the work.
|
| b) Press reviews.
|
| c) Diffusion of public speeches as current news.
|
| d) Reproductions of works of art in catalogues for auctions
| in France (subject to regulatory restrictions).
|
| 4. Parody, pastiche and caricature, "taking into account the
| usage of the genre".
|
| 5. Acts necessary to access a database within the limits of
| the agreed use.
|
| -
|
| But how can this be true? Orange clearly does not fall into
| any of the excluded uses, and I must release my software with
| some sort of licensing statement (even the lack of a
| statement is a statement in my jurisdiction). But it appears
| this ruling would mean all breaches could only ever be
| contract breaches.
|
| So again, how do I have copyright for software in France? I'm
| genuinely trying to understand if there's some nuance here
| that I'm missing.
| denton-scratch wrote:
| > How can you possibly have a valid copyright for software
| in French law if all license terms are considered contract
| breaches?
|
| Perhaps you are confusing the copyright with the licence.
|
| The copyright adheres strictly to the author. He can sell
| it, in which case he sells the right to licence and
| enforce.
|
| If he licences, then he retains the copyright, and grants
| the licensee specific rights in exchange for specific
| actions. That's a licence agreement; to my mind, the word
| "agreement" signifies a contract. I find it a stretch to
| interpret a licence violation as a copyright violation.
| [deleted]
| Thomashuet wrote:
| The other side (Entr'Ouvert) is also French. I don't see how
| you can think this is a case of France against not France.
| imwillofficial wrote:
| One is a national asset and one isn't? (Perhaps I'm wrong)
| edoceo wrote:
| Nobody thinks it's France v !France. Its big national corp
| (Orange) vs a little guy. The court sided with the BigCo.
| That's the issue.
| bpodgursky wrote:
| Yeah, if Orange was willing to do this once, the chances
| are that their tech stack would be swiss cheese if they had
| to excise all the GPL-licensed tech they are using without
| rights. The precedent is more important to them than the
| $3mm.
| eqvinox wrote:
| FYI / "FHNI": The GPL also has issues in Taiwan, apparently
| because it's illegal there to enforce its constraints on anything
| but the first user / immediate level. Or something like that --
| not a lawyer here.
|
| Found this paper on the topic:
| http://www.law.nagoya-u.ac.jp/ls/review/_userdata/10-04.pdf But
| honestly I don't understand too much of it.
|
| Either way if France joins Taiwan, that sure isn't a good thing
| for people relying on the GPL, but it won't break its back
| either. Some "industry of opportunity" may spring up (it
| definitely has in Taiwan), but it's not the end of the world.
| snovv_crash wrote:
| You can still pursue GPL violations in France, it just has to
| be framed as contract violations rather than copyright
| violations.
| dathinab wrote:
| Depending on the context you probably still could frame it as
| a copyright violations.
|
| My guess is that the problems lies in the aspects of the
| automatic termination of the contract not being valid in
| France law in exactly that way. I.e. it being "in between"
| valid and invalid until the court case around the termination
| is settled and in turn it means there is still a (breached)
| contract or similar.
|
| If that is the case you might be able to avoid this problem
| by making sure the contract is properly and explicitly
| terminated before you start suing, but it also requires the
| offender to continue using your software after you explicitly
| terminated the contract. I.e. you couldn't do it in
| retrospective, and it probably also would be a problem if
| there is a ongoing curt case for damages due to the breach of
| contract...
| PixelOfDeath wrote:
| > The GPL also has issues in Taiwan, apparently because it's
| illegal there to enforce its constraints on anything but the
| first user / immediate level.
|
| NEW! License restriction free Linux source code for only $ 9.95
| ! Only used once! ORDER NOW!
| fartcannon wrote:
| If the enforcement body is corrupt, no licence will stand.
| jeroenhd wrote:
| What I think is the real meat of the story:
|
| > That is to conclude, by having a contract (a license is a
| contract), you lose your rights to pursue any IP/copyright claims
| (the two are exclusive in French law).
|
| GPL was written by lawyers for the American system of law and
| France is not part of the USA. The systems of law are different
| and therefore the implications of GPL-licensing code are
| different.
|
| I'd be very surprised if France is the only country that treats
| software licenses like this. The basis of the USA system of law
| is completely different from even other European courts, let
| alone non-Western systems of law. Assuming you can write a
| license for use in the USA and enforce it the world around is
| quite foolish.
| mcguire wrote:
| The US and France are signatories to a good stack of copyright
| related treaties:
|
| http://www.copyright.gov/circs/circ38a.pdf
|
| You'd have to dig to find the details of the agreements and
| what they mean for GPL'd software, but it's not as simple as
| "France is not part of the USA". I'd be surprised if the
| authors of the GPL didn't take the differences into account.
| They aren't fools.
| ameixaseca wrote:
| Not sure if naivete or innocence, but I think you are
| overestimating the GPL efforts by a lot.
|
| RMS may not be a fool but he is still American (and not a
| lawyer). I don't think he was focused in solving
| licensing/copyright issues in the rest of the world in the
| early 90s - and even late efforts for GPLv3 didn't change it
| that much.
| mcguire wrote:
| Eben Moglen (https://softwarefreedom.org/about/team/) _is_
| a lawyer.
|
| The GPL has been in existence for more than 30 years and
| has been enforced in multiple countries that are not the
| US, including France.
| ameixaseca wrote:
| You are talking about GPLv3, of course.
|
| In any case, this was posted along the discussion here,
| and you might find it interesting:
| https://www.gnu.org/licenses/translations.en.html
| Blikkentrekker wrote:
| > _he basis of the USA system of law is completely different
| from even other European courts, let alone non-Western systems
| of law._
|
| This suggests that it's meaningful to divide legal systems into
| "Western" _vs._ "Non-western".
|
| The most meaningful divide is rather "civil law" _vs._ "common
| law". Japanese civil law is probably closer to any continental
| European civil law than any of them are to say the U.K. 's or
| U.S.A.'s common law.
| leoc wrote:
| > the U.K.'s [...] common law
|
| You mean England-and-Wales' and Northern Ireland's common law
| ofc! :)
| Blikkentrekker wrote:
| This is interesting new information to me, but I looked it
| up and Scotland indeed has what many consider a mixed
| system, quite unique since the U.K. is a unitary state.
|
| I was already aware that Scotland uniquely for the U.K. has
| the _unus testis, nullus testis_ principle which is
| ubiquitous in civil law systems, but I had no idea of how
| far reaching it was.
|
| https://en.wikipedia.org/wiki/Common_law#Scotland
|
| Regardless, looking at this map of the world here:
|
| https://commons.wikimedia.org/wiki/File:Map_of_the_Legal_sy
| s...
|
| It is quite clear that continental Europe shares more with
| even China than it does with say, England, Australia, or
| the U.S.A..
| kazen44 wrote:
| civil law is obviously based on the "code civil" from the
| french republic and to a lesser extent ancient roman
| civil law.
|
| The fact that most of the world has this system is quite
| easily explained. mainly thanks to colonialism and
| imperialism.
|
| China adopted a similair system after the boxer
| rebellion.
| rincewind wrote:
| That doesn't seem right. Does that mean when I buy any
| proprietary software and then reverse engineer and leak the
| source code, they can't sue me?
| user5994461 wrote:
| Reverse engineering is allowed under French law, there are
| specific legal exemptions around that.
|
| It's common to see EULA/license/contracts with clauses that
| prohibit reverse engineering, these clauses are void in
| France and many other jurisdictions.
|
| Article L122-6-1 https://www.legifrance.gouv.fr/codes/article
| _lc/LEGIARTI0000...
| coderdd wrote:
| IANAL but EU reverse engineering exception is granted for
| purposes of interoperability as I remember? Think API,
| protocol, file format.
|
| You can't reverse engineer and share random internals.
| kergonath wrote:
| There is some variation within the EU, with different
| national laws. In French law at least you're right:
| reverse engineering is allowed only for interoperability
| and you're not allowed to distribute decompiled code.
| ElFitz wrote:
| In the EU, and probably elsewhere, there are entire
| engineering shops of which the one and only purpose is to
| reverse engineer competitors' features and figure out a
| legal way to get around patents and replicate those
| features.
|
| No interoperability there.
|
| Some people I know do that for a living in the auto
| industry.
| realusername wrote:
| > That doesn't seem right. Does that mean when I buy any
| proprietary software and then reverse engineer and leak the
| source code, they can't sue me?
|
| Yes it's legal in France if it's for "interoperability
| purposes" (so depends on your specific case). Basically any
| DRM is breakable legally due to this exception.
|
| Reverse engineering is always legal as well and no contract
| signed can remove that right.
| tarsinge wrote:
| My understanding is that no contract can prevent you from
| doing what you want with stuff you buy, including
| disassemble, study, repair, modify, or any use in a non-
| intended way. IP still apply so it doesn't give you the
| right to share any information you may find, except for
| "interoperability purposes".
| pyb wrote:
| No, it means that what happens to you is completely
| jurisdiction-dependent.
| gpm wrote:
| Rather it seems like they might have to sue you for breach of
| contract, instead of breach of copyright.
|
| Per the article the court didn't rule that licenses were
| unenforceable, they ruled that they were enforceable via
| contract law and that the plaintiffs were incorrectly
| attempting to enforce them via copyright law.
| ectopod wrote:
| But can you enforce click-through licenses in France?
|
| If Entr'Ouvert had chosen the alternative route and sued as
| a contract violation, then Orange would have claimed that
| they never accepted the contract and the matter could only
| be decided by the copyright court. But (according to the
| article) you only get one shot at the litigation. So I
| guess you can never enforce the GPL in France. Maybe?
| tsimionescu wrote:
| I don't think taking and distributing a library is
| comparable to a click-through license. There's a
| relatively simple case to be made that you could have
| only copied the code if you had accepted the contract.
|
| Not that Orange wouldn't have tried to claim what you are
| saying, but as a layman, the case for contract law sounds
| stronger than copyright infringement.
| mcguire wrote:
| The point of the GPL is that, if you don't accept the
| license, then you don't have any rights to distribute the
| code and doing so would be a copyright violation. It's
| not a EULA that has extra restrictions on what you can
| do.
| aidenn0 wrote:
| I'm totally unfamiliar with French Civil law; can contract
| law ever be punishable with any prison time? In the US
| copyright law is (at least in theory) a criminal offense,
| punishable with prison time, but my understanding is that
| breech of contract is not.
|
| The implications, if true, would be that if you license
| something in France, and start selling copies in flagrant
| violation of the license, you cannot be threatened with
| criminal charges?
| dragonwriter wrote:
| > I'm totally unfamiliar with French Civil law; can
| contract law ever be punishable with any prison time?
|
| Private parties in most countries can't prosecute
| criminal charges anyhow, and limitations on the
| mechanisms of pursuing civil [0] law claims by private
| parties don't generally have any effect on criminal
| prosecution by the State, since even with the same common
| name for an area of law, the precise definitions in
| criminal law are different than civil law.
|
| [0] used here in contradistinction to "criminal" as an
| area of law, not to "Common" as a system of law, since
| both distinctions have been relevant in the thread.
| black_puppydog wrote:
| But as the article also points out, the different ways of
| enforcement typically result in drastically different
| levels of compensation (read: incentive) with contract law
| being judged on missed profits, which is often zero for
| FOSS libraries.
| dathinab wrote:
| > GPL was written by lawyers for the American system of law and
| France is not part of the USA.
|
| The important thing is GPL (and other licenses) are
| _contracts_. So violations of there terms is a breach of
| contract and in turn clearly handled by the court responsible
| for handling breaches of contract.
|
| The interesting part is why it's not (majorly) handled as a
| breach of contract in the US?
|
| The trick is following or similar sentence (qouted from GPLv3):
|
| > will automatically terminate your rights under this License
|
| Which means of the breach the license contract you lose the
| license contract and in turn can be sued for copyright
| violation.
|
| Now the gotcha is not everything you write in a license
| agreement is necessary valid in exact the same you write it,
| _so now what happens if automatic contract termination_ is not
| valid and contracts in such case e.g. exists in-between valid
| and invalid until conflicts are resolved or similar?
|
| At this point you would still have a contract, one which grants
| you the right to use given software "just not in given way" and
| in turn wouldn't it be a case for courts responsible for
| contract breaches?
|
| Now I know nothing about French Copyright law, but the idea
| that laws (against auto termination) which would exists to
| uphold fair competition and prevent abuse might majorly
| negative affect copyleft licensed open source makes you think.
| FridayoLeary wrote:
| >Now the gotcha is not everything you write in a license
| agreement is necessary valid in exact the same you write it,
| so now what happens if automatic contract termination is not
| valid and contracts in such case e.g. exists in-between valid
| and invalid until conflicts are resolved or similar?
|
| Schrodinger's Cat.
| dragonwriter wrote:
| > GPL was written by lawyers for the American system of law and
| France is not part of the USA.
|
| The GPL also has been ruled a valid contract in the US, and the
| US also has the rule that with a contract in place, conduct
| authorized conditionally by a contract but alleged to be done
| outside of its authorized conditions must generally be pursued
| as breach of contract.
| jahewson wrote:
| This is not the case. In the US the Copyright Act supersedes
| all other common law and State statutes, this is written into
| the Act itself. See: Title 17 USC Section 301(a). It is not
| possible to sue for breach of contract in relation to a
| copyright claim.
| cormacrelf wrote:
| Nope. 301(a) is talking about things like common law
| copyright. The notes to that section from the Cornell LII
| [0]:
|
| > _Nothing in the bill derogates from the rights of parties
| to contract with each other and to sue for breaches of
| contract; however, to the extent that the unfair
| competition concept known as "interference with contract
| relations" is merely the equivalent of copyright
| protection, it would be preempted._
|
| If you think about it, if what you said were true, then you
| couldn't make any contracts regarding copyright works and
| expect them to ever be enforced. Disney wouldn't work as a
| concept. Sounds a bit extreme, is a bit extreme.
|
| [0]: https://www.law.cornell.edu/uscode/text/17/301
| ChuckMcM wrote:
| Would love a citation where this was actually litigated.
|
| Edit: And to be clear here, I'm not doubting you, I am
| actually quite interested in software license/copyright
| litigation. Having had long discussions over which is better
| "BSD" or "GPL" and discussing the litigation of the BSD vs
| AT&T established some solid case law on both the legitimacy
| of, and the way the BSD license was viewed. But for a long
| time there hasn't been good litigation of the various GPL
| flavors that actually went to court and came back with a
| decision that was appealed and affirmed. Would love to add
| such citations to my collection.
| secondcoming wrote:
| But then I assume that I could sue a French alleged-copyright
| violator in the USA, and if I win, the infringer is banned from
| selling that product in the USA?
| jeroenhd wrote:
| Yes, that would probably work. USA jurisdiction still applies
| to software sold in the USA, even if it's originally written
| in France. Things might get more complicated when a French
| company hires remote workers, though.
| simonh wrote:
| >Assuming you can write a license for use in the USA and
| enforce it the world around is quite foolish.
|
| In this case there is no reason to suspect it (the GPL or any
| software license) is not enforceable in France, you just have
| to go about it the right way and sue in the contract law
| courts.
|
| As a specific wrinkle of the French system, if you sue under
| one system (copyright or contract), if you fail you can't sue
| under the other. In most countries you would not face such a
| restriction.
|
| It's amazing to me that this has not come up before. Has a
| software license never been litigated as a copyright violation
| in France before? Strange.
| oneplane wrote:
| In a lot of western countries that are not the US, software
| isn't copyrightable as-is, only as a description of its
| functionality or something like that (not a lawyer, might
| have been the patent vs. copyright thing).
|
| This difference means that a lot of what a litigation-centric
| society would assume about software (perhaps not copyright,
| but patents) doesn't apply elsewhere.
|
| That said, the goals of the legal systems tend to converge:
| it was about protecting ideas so the people investing in it
| stand a chance to see a return. I wouldn't be surprised if
| there simply is a different system with a different name but
| with the same goal (yet being incompatible with a global
| blanket software copyright claim). I have only studied the
| subject for a small group of western european countries
| (France not included) and most of them not being based on
| common law makes quite the difference.
| cryptonector wrote:
| In a global marketplace though, if you can't sell your GPL-
| derivative in one large market, the fact that you can sell it
| in a smaller market may not be much comfort.
| jlos wrote:
| Should've gotten some Canadian lawyers involved in GPL. Due to
| the combined heritage of English and French (Quebec) Canada has
| both Civil law (French) and Common Law (English).
| elliekelly wrote:
| I believe Louisiana uses a combination of civil and common
| law as well for the same reason.
| dragonwriter wrote:
| > Canada has both Civil law (French) and Common Law
| (English).
|
| So does the US; Louisiana is America's Quebec.
| 908B64B197 wrote:
| Not just legally, culinary too...
| [deleted]
| jibcage wrote:
| As I understand it, Louisiana is a civil law state as well:
| https://www.bloomlegal.com/blog/what-is-unique-about-
| louisia...
| retrac wrote:
| While this is a true factoid, civil law in Canada is
| restricted to Quebec, and is ultimately subordinate to the
| constitution, which is interpreted in a nearly identical
| manner to American law, in the common law style. The civil
| law influence is mostly restricted to Quebec in areas of
| provincial jurisdiction (family law, small claims, etc.) The
| Copyright Act is federal and would get the common law
| handling.
|
| (Approximately the same situation is true in the USA with
| Louisiana, whose state laws also have a form inherited or at
| least strongly influenced by the Napoleonic code, ultimately,
| but since harmonized to fit into a common law system.)
| 908B64B197 wrote:
| > and is ultimately subordinate to the constitution,
|
| Didn't like, a third or more of the population just didn't
| sign it?
| retrac wrote:
| Quebec never signed off on the 1982 constitutional
| reform, which created a mechanism for amending the
| constitution and finally fully separated Canada from the
| UK government. Until that point, the constitution of
| Canada was technically part of UK law. Not entirely
| unlike the devolved Parliament of Scotland today. The UK
| Parliament could amend it, in theory unilaterally. (It
| was long-standing convention not to do so except when
| requested, by the 20th century.)
|
| So Quebec's signature was not required, legally, for the
| current constitution to be imposed upon them. (Long ago,
| Quebec's elected delegates did approve of the original
| Constitution Act in 1867.) Per the amendment formula,
| each province including Quebec has veto power over any
| further amendment that requires unanimous consent
| (affecting distribution of government powers, etc.) Which
| is now something of a stand-off. Getting an amendment
| that triggers that clause passed, seems all but
| impossible in contemporary Canada politically.
| ameixaseca wrote:
| It was a single province, which at the time had around a
| third of the population indeed.
|
| Their signature was not required for the constitution to
| enter in effect. It was desired (it still is) but since
| the refusal was (and still is) mostly political, it is
| not regarded as a major impediment.
|
| Keep in mind two-thirds is a qualified majority.
| 908B64B197 wrote:
| > Their signature was not required for the constitution
| to enter in effect.
|
| That's... weird. I mean, I couldn't really imagine one of
| the 13 colonies not signing the declaration or
| constitution.
|
| > but since the refusal was (and still is) mostly
| political
|
| I mean, it's a political document... anything having to
| do with it will be political!
| retrac wrote:
| > I couldn't really imagine one of the 13 colonies not
| signing the declaration or constitution.
|
| Canada never declared independence from the UK. That's
| probably the difference in thinking. The constitution was
| not revolutionary. It was a reorganization, and that
| reorganization was carried out according to UK law (which
| was equivalent to Canadian law as a UK colony) at the
| time. The law did not require the consent of the
| provinces to amend the constitution at that time. In
| fact, the law allowed the UK parliament to simply rewrite
| Canada's constitution unilaterally. So they did, upon the
| request of the Canadian federal government after years of
| consultations in Canada to propose the amendments the UK
| rubber-stamped, when they renounced all further claim to
| that in 1982.
|
| If you want an analogy, some US states rejected the
| prohibition amendment, but they were bound by it anyway.
| Established constitutional law allowed it to be imposed
| on those states.
| jcranmer wrote:
| > That's... weird. I mean, I couldn't really imagine one
| of the 13 colonies not signing the declaration or
| constitution.
|
| The US Constitution went into effect on ratification of 9
| of 13 states. Virginia and New York were numbers 10 and
| 11, but ratified it before a government under the new
| constitution was elected. North Carolina waited about a
| year later to ratify it, and Rhode Island even several
| months after that (it ratified it only after the United
| States threatened to embargo them), and consequently were
| not part of the first government under the new
| constitution.
| pessimizer wrote:
| The word "political" has changed meaning recently to
| exclusively refer to discussion of minority rights and
| issues. If you asked (Americans at least) with no
| context, whether people wanted _politics out of
| government,_ probably 50% would say yes.
| kergonath wrote:
| That's wild. "What the government does" is the definition
| of politics.
| mcguire wrote:
| Why do you assume that they don't know what they are doing?
|
| https://fsffrance.org/news/article2009-09-22.en.html
|
| https://www.pillsburylaw.com/images/content/1/6/v2/1655/A9A2.
| .. (Doesn't address France specifically.)
| belval wrote:
| This is an interesting yet very frustrating read. Every few weeks
| we see a post on HN about an MIT-licensed project that gets
| picked up by AWS or Azure and the general response is "should've
| been GPL". This case right here highlights that in France that
| doesn't work either.
|
| Their equivalent of AT&T used GPL software (admitted to it) but
| claims that it's a contract issue and not a copyright one so the
| case gets thrown out.
| unmole wrote:
| GPL doesn't force you to release your changes to the outside
| world if you don't distribute it.
| zozbot234 wrote:
| Did Orange then "distribute" the library to users as part of
| deploying this authentication service, or was this purely
| internal, SaaS use? If the latter, it makes sense that the
| counterfeiting claims were dismissed, since these only arise
| when the software is "distributed".
| eqvinox wrote:
| Indeed, that's what the AGPL is for.
| enigma-reload3d wrote:
| despite the general hate against SSPL from mongo has, it's
| more powerful than agpl
| tsimionescu wrote:
| AGPL only changes things if you give access to your
| software over the internet. If you're just using the
| software internally (e.g. it's used in the corporate SSO
| solution for access to an internal wiki) than no OSS
| license will force you to publish the code.
|
| Furthermore, if I contract a company to build a service
| which I will run internally, and they use (A)GPL software
| in this service that they are building for my internal use,
| neither I nor the company probably have any requirement to
| publish the source code to anyone, perhaps except that the
| contractor may have to provide me with the source code if
| this was not otherwise stipulated. But _you_ don 't have
| any right to see the code that _they_ modified for _me_ ,
| even if you are the initial author of that code.
| pessimizer wrote:
| > perhaps except that the contractor may have to provide
| me with the source code if this was not otherwise
| stipulated.
|
| They wouldn't have the right to _otherwise stipulate_.
| The contractor can 't change the license to the software
| without losing the license to the software. Even if they
| were distributing a modified version to a single
| customer, that customer would have the right to the
| source. That customer, using it internally, wouldn't have
| the obligation to distribute any of the source or changes
| _but they would have the right to._
|
| Otherwise, you could just sell software as a "contractor"
| in name only to any number of customers, and effectively
| relicense it with "stipulations."
| R0b0t1 wrote:
| AGPL does not seem to apply only over the internet. It is
| a network. That could be a USB cable or WiFi or a serial
| cable, possibly even a SATA port.
| marcosdumay wrote:
| Just to clarify even further, it's not only AGPL instead of the
| GPL (some times it's also GPL instead of MIT), but the cloud
| providers would be perfectly conformant with the AGPL too.
|
| Usually the HN people that are complaining are talking about
| market concentration.
| chrisseaton wrote:
| > Every few weeks we see a post on HN about an MIT-licensed
| project that gets picked up by AWS or Azure and the general
| response is "should've been GPL".
|
| How would using GPL help you in that situation?
| webmobdev wrote:
| OP means AGPL - https://www.gnu.org/licenses/why-affero-
| gpl.html
| tzs wrote:
| Slight correction: it is usually "should've been AGPL".
|
| Not that it usually actually matters, because if you are a
| smallish company making most of your money by selling support
| for your FOSS-licensed software the big cloud providers are
| going to eat your lunch regardless of what FOSS software
| license you use.
|
| They will be using your software at sufficient scale that it is
| more efficient for them to handle support for it for their own
| use anyway, and by extending that support to their paying
| support customers that support they were already going to have
| to do for their own use becomes an advantage for their
| customers.
|
| The original company's advantage over everyone else providing
| support and maintenance is that the original company knows the
| direction of future development. That's a great advantage _if_
| the software is the kind for which people really want to
| rapidly upgrade to the latest version.
|
| The kind of cloud infrastructure services that are usually
| involved in the "cloud company X killed my business by selling
| support for my project" stories are the kind of services that
| people don't rush to upgrade.
| webmobdev wrote:
| > _Every few weeks we see a post on HN about an MIT-licensed
| project that gets picked up by AWS or Azure and the general
| response is "should've been GPL"._
|
| If you are distributing GPL software, the GPL says that you are
| obliged to provide the source code of the software on request.
| Amazon or Microsoft use this as a loophole to claim they have
| no obligation to release the source code of any GPL software
| they use on AWS or Azure. They claim they are not distributing
| the GPL software but only executing the softwares on their
| servers and providing it to the users as a service offering.
|
| This is why the Free Software Foundation created the _Affero
| General Public License_ (AGPL).
|
| The AGPL includes all the provisions of the GPL but also has
| extra clauses that makes it obligatory to provide the source
| code even if the software isn't distributed but made available
| as a "service" through some server.
|
| _" The GNU Affero General Public License is a modified version
| of the ordinary GNU GPL version 3. It has one added
| requirement: if you run a modified program on a server and let
| other users communicate with it there, your server must also
| allow them to download the source code corresponding to the
| modified version running there."_
|
| (Why the Affero GPL - https://www.gnu.org/licenses/why-affero-
| gpl.html ). This is why everyone now recommends that you should
| use the AGPL (instead of the GPL / MIT / BSD license etc) for
| open source projects.
|
| > _This case right here highlights that in France that doesn 't
| work either ... it's a contract issue and not a copyright one
| so the case gets thrown out._
|
| The French court did conclude that there is no case to be made
| under copyright law, and that it considered the GPL as a
| _contract_. And so any dispute between parties on the GPL can
| only be judged under France 's "contract laws". This doesn't
| mean that the GPL is no longer valid in France. France is just
| asserting that the GPL is a contract. You can still take anyone
| who violates the GPL to court. You just have to file the case
| under the right law. When you claim in court that someone in
| breaking the law, you have to point out the right laws that you
| claim are being violated, or your case will be thrown out.
|
| (It's like adultery laws - adultery was once a criminal
| offence. It is now treated as a civil offence in many
| countries. Meaning, you can no longer file a complain with the
| police if your spouse cheats on you, and have them
| investigated, arrested and tried in court as a criminal. But
| you can still sue your spouse in court and get damages.)
| Ericson2314 wrote:
| W.R.T. Copyright assignment the FSF constantly complains "we've
| hired the lawyers and done the work, you all need to tread more
| carefully", but situations like this do seem to undermine that.
| hnfong wrote:
| Heh, and I get down voted here when I comment that the GPL is
| probably a contract...
|
| Oh well, I don't have a Harvard law degree so what do I know
| dathinab wrote:
| You got down voted for sarcasm in a way people don't like and
| missing context, through yes GPL is a contract and you don't
| sue for GPL violations in front of the copyright curt but for
| people not having a license as the GPL contract was
| automatically terminated due to violations. (As far as I know).
| blueblisters wrote:
| My understanding of the case as a legal noob:
|
| 1) The defendant was not willing to redistribute the source-code
| it and hence they were sued for violation of GPL from the owner
| of the software under copyright law.
|
| 2) French court did not recognize the validity of software
| licenses to be enforced under French copyright law.
|
| Does that mean GPL and all similar free licenses that rely on
| copyright law cannot be enforced in similar jurisdictions? Does
| anyone have a list of countries/jurisdictions where a similar
| ruling is likely to happen? What alternatives exist for free
| software in those countries?
| bluGill wrote:
| > Does that mean GPL and all similar free licenses that rely on
| copyright law cannot be enforced in similar jurisdictions
|
| You missed one important point
|
| 3) The French court said take this is for the contracts courts,
| take it to them - something that hasn't happened yet.
|
| The contract courts have not ruled (this hasn't even been
| brought to them from what I can tell) on this case at all, but
| probably would find in favor of the GPL. The GPL probably can
| be enforced in France, but it is a contract violation not a
| copyright violation which apparently the FSF doesn't like. (I'm
| not clear on why - possibly because the court award would be
| much less)
| lukeschlather wrote:
| The FSF is not mentioned in this article, nor are they the
| author of the article. I was surprised when the author wrote
| "Remember that it's all about money!" because that is never
| what the FSF says - in fact the FSF whenever they sue they
| always say "We don't care about money, we want you to comply
| with the terms of the GPL."
| bluGill wrote:
| Good point. Though the courts might disagree and decide it
| is about money anyway. I have no idea how France will
| handle this - nor any of the other countries in the world.
| dathinab wrote:
| > validity of software licenses to be enforced under French
| copyright law.
|
| Neither does the US (as far as I know)
|
| What happens in the us is that a termination clause in the GPL
| _contract_ leads to a termination of the contract and only then
| you can sue for copyright violations.
|
| So my guess is that the difference of law or the
| interpretation/application of it lies in how/when the
| termination applies.
|
| > cannot be enforced in similar jurisdictions
|
| They still can be enforced it's just based on a different legal
| basis, which in general is much less costly for the offender
| and might lead to less "damage payment" for the offended.
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