In case of first impression in France, the Court of Appeals in Paris has issued a holding, as part of a larger dispute over the delivery of software, that supports the assumption that the General Public License is enforceable. http://fsffrance.org/news/arret-ca-paris-16.09.2009.pdf. The case also suggests a new basis for licensees to allege breach of contract for commercial licenses: the failure of the licensor to comply with the open source licenses for modules included in the commercial product.The case involved a claim for rescission under Civil Code Article 1184 that permits rescission of a contract and the award of damages, or specific enforcement, if the other party does not perform its contractual obligations.
The case originated when Edu4 won an RFP issued by AFPA for a system to run adult educational programs. The RFP required the use of VNC software. Edu4 provided the software, which was licensed under the General Public License (GPL).
The GPL requires that the company distributing the licensed software provide either the source code of the software or a written offer to provide the source code. Edu4 promised to provide the source code to AFPA, but failed to do so. Edu4 also removed two copyright notices in the VNC software and substituted its own notices; deleted the text of the GPL; and failed to properly indicate that VNC software had been integrated in the deliverables. In addition, Edu4 deleted user features that AFPA alleged created the risk of an intrusion of privacy.
AFPA subsequently argued that the contract had been breached, and ceased its performance. Edu4 claimed wrongful termination and was awarded damages by the lower court. On appeal, the Paris Court overturned the lower court decision, finding that Edu4 breached its contractual obligations by delivering a product that 1) created a risk to user privacy because modifications by Edu4 allowed other users or remote users to assume control over all the workstations and 2) did not comply with the GNU GPL because Edu4 had deleted two copyright notices in the VNC software and replaced them with its own copyright notice and had deleted the GNU GPL license language.
The case is also unusual because it involved a suit by a licensee, AFPA, against a distributor, Edu4, claiming breach based on violation of the terms of the GPL by the distributor. Other suits to enforce the GPL of which I am aware have been brought by the owner of the copyright (or its agent) in the GPL licensed product to enforce the GPL. I want to thank my partner in Paris, Carol Umhoefer, for assisting me in understanding the significance of this case.
This decision is important for two reasons:
1. For the first time, the GPL was found, indirectly, enforceable under French law.
2. It reminds us that licensees of the code can also sue to enforce the rights resulting from the GPL
3. It may also suggest a new basis for licensees to charge breach of the commercial license agreement: the licensor has failed to comply with the terms of open source licenses to software included in the product under the commercial license agreement