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

The most recent Black Duck survey of the use of open source licenses reveals some very interesting trends. http://www.marketwatch.com/story/gplv3-licenses-quadruple-in-2009-but-gpl-projects-drop-by-five-percent-from-2008-levels.

First, GPLv3, the first revision to GPLv2 in twenty years, is increasing in adoption: it is now the fifth most common license, passing Mozilla, MIT and Apache.  However, many large and important projects such as Linux, Hibernate and JBoss have chosen to remain with GPLv2.  According to Black Duck, GPLv3 is growing at four times the rate of last year.  GPLv3 is used on 9500 projects.  These numbers reflect both decisions by new projects as well as existing projects.  However, the decision to remain with GPLv2 has more than strategic dimension: large existing projects need to deal with the practical issues. For example, Linux has over 10,000 contributors and a shift to GPLv3 would require permission from each one of them (or rewriting the code) because Linus Torvalds licensed Linux under a “locked down” version of GPLv2. GPLv2 ,by its terms, permits any recipient of GPLv2 licensed software to shift to a newer version of the General Public License unless the licensor chooses to “lock down” the General Public License to a particular version.  However, even projects which are not “locked down” need to carefully consider this move because the terms of GPLv2 and GPLv3 are inconsistant and a shift to GPLv3 would “fork” the project.

Second, Black Duck notes that the use of GPL license variants declined by 5%. I have not seen this shift in my practice (which is more focused on companies with commercial interests), but I think that it may reflect the greater number of projects being made available by universities (and some corporateions) who are interested in ensuring the widest possible usage and, thus, pick a permissive license like BSD or Apache. Matt Asay has an interesting perspective on this issue http://news.cnet.com/8301-13505_3-10276903-16.html?tag=mncol;title. I don’t agree with him that the licenses are irrelevant, but I do agree that data is a new source of value.  Ironically, data is very difficult to protect under the US legal regime since its protection under copyright is limited.

I am surprised that we have not seen a greater growth in the use of the Affero General Public License v3. This license is the GPLv3 with a “network use” provision.  Essentially, the license broadens the situation in which the GPLv3 obligations (making source code available and right to modify etc) are imposed from distribution (GPLv3) to include making the software available over a network. As we move into a more web centric world, I think that projects (and companies) which are trying to achieve the GPLv3 level of a “commons” need to consider AGPL. However, I will note that for many prospective licensees, the scope of AGPL is very troubling and there is a reluctance to license software using the AGPL software.  For more information about aligning your business strategy and your intellectual property and licensing strategy, you can see by OSBC presentation at http://www.slideshare.net/markradcliffe/ip-and-licensing-strategy-for-open-source-companies

The Black Duck survey continues to provide very useful information about how the industry is evolving.