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Determining the Basis of Rights in Copyright Infringement Cases Involving Open Source Software
——(2021) Supreme Court Civil Judgment No. 51
【Key Judgment Points】
In cases of infringement of computer software copyright, whether the software developer involved has fulfilled their open source obligations and whether they enjoy copyright based on their originality contributions are not necessarily related. Courts generally do not support the defense that the accused infringer does not infringe the copyright of the software merely because the developer did not open source the software according to the open source agreement.
【Keywords】
Civil Infringement of Computer Software Copyright Open Source Software GPL Open Source Agreement
【Basic Case Facts】
A certain technology company claimed that it had developed a gateway product system software named “OfficeTen” and obtained a copyright registration certificate from the National Copyright Administration for “OfficeTenl800 System Software (V1.8)” in 2013. Zhejiang Yi Company and Suzhou Qi Company illegally obtained and copied the source code of the software owned by the technology company, modified the source code, and publicly sold gateway products burned with software highly similar to the source code on the market, infringing on the rights to copy, modify, and distribute the software, profiting significantly, while also infringing on the technology company’s right to remuneration as the copyright holder. Therefore, it requested the court to order Zhejiang Yi Company and Suzhou Qi Company to stop the infringement, apologize, eliminate the impact, and bear corresponding compensation responsibilities.
Zhejiang Yi Company and Suzhou Qi Company argued that the source code information claimed by the technology company belongs to open source code, developed in accordance with the OpenWRT system software open source code agreement. Even if it was genuinely developed, they could not obtain copyright, which should belong to the original authors of the OpenWRT system software. Moreover, the technology company had no evidence to prove that it had conducted independent research and development.
The first-instance court found that the full name of the GPLv2 agreement is the GNU General Public License, version 2, which is translated into Chinese as “GNU General Public License (Version 2)”. The GPLv2 agreement was published by the Free Software Foundation. The OpenWRT system software is a system operation control software in the communications field, which is open source and subject to the GPLv2 agreement. The contributors to the OpenWRT system software are numerous, and developers can freely obtain the source code of the OpenWRT system software on the Internet. The software involved in this case is derivative software developed based on the OpenWRT system software, which can be divided into two parts: one part is the underlying system software formed by adding, deleting, modifying, and adjusting the corresponding source code of the OpenWRT system software (hereinafter referred to as the underlying system software), and the other part is the upper functional software formed by new source code corresponding to the specific functions of the software involved (hereinafter referred to as the upper functional software). The technology company claimed that it established an isolation layer between the underlying system software and the upper functional software using technical means such as sockets and command lines, and that the communication content between the two does not involve internal data structure information, thus making the upper functional software an “independent and separate” program under the GPLv2 agreement, and therefore not subject to the GPLv2 constraints. The accused software was created by an employee of Suzhou Qi Company who took advantage of their previous employment at the technology company to log into the technology company’s server and download the source code of the software involved, making minor modifications to create software with essentially the same functionality as the software involved. According to two expert opinions issued by a judicial appraisal institution in Shanghai and the testimony of its personnel in the first-instance court, the source code of the software involved and the accused software are substantially similar. Furthermore, there is no evidence in this case to prove that Suzhou Qi Company took any further measures to prevent the constraints of the GPLv2 agreement.
The first-instance court made a civil judgment on July 14, 2020: 1. Zhejiang Yi Company and Suzhou Qi Company shall immediately stop infringing the copyright of the technology company’s “OfficeTenl800 System Software”; 2. Zhejiang Yi Company and Suzhou Qi Company shall jointly compensate the technology company for economic losses and reasonable expenses for rights protection totaling 500,000 yuan; 3. Zhejiang Yi Company shall publish a notice on its official website regarding the infringement to eliminate the impact (the publication period shall not be less than 15 consecutive days, and the content must be approved by the court); 4. The other claims of the technology company were dismissed. After the judgment, Zhejiang Yi Company and Suzhou Qi Company appealed, arguing that the software involved is subject to the GPLv2 agreement, and according to the GPLv2 agreement, the technology company was already obligated to publicly disclose the source code of the software involved, thus their use of the source code did not constitute infringement. The Supreme People’s Court made a civil judgment on October 12, 2023, (2021) Supreme Court Civil Judgment No. 51: the appeal was dismissed, and the original judgment was upheld.
【Judicial Opinion】
The court’s effective judgment holds that the non-infringement defense raised by Zhejiang Yi Company and others based on the GPLv2 agreement cannot be established for the following reasons:
First, this case is a copyright infringement dispute regarding the software involved, not a contract dispute. Although the software involved is related to the GPLv2 agreement, since the rights holder of the OpenWRT system software is not a party to this case, based on the principle of relativity of contracts, it is inappropriate to examine whether the software involved is wholly or partially subject to the GPLv2 agreement, whether the technology company violated the GPLv2 agreement, and whether the technology company should bear any breach of contract or infringement liability. Second, regarding whether the software involved is subject to the GPLv2 agreement, this issue involves whether the underlying system software is subject to the GPLv2 agreement, whether the upper functional software constitutes an “independent and separate” program under the GPLv2 agreement, how to define the isolation technology measures, communication methods, and content between the two, as well as the usual understanding and industry practices regarding the transmissibility of the GPLv2 agreement in the software field. In the absence of the rights holder of the OpenWRT system software as a party to this case, it is also difficult to ascertain the aforementioned series of facts related to the GPLv2 agreement. Furthermore, Zhejiang Yi Company and Suzhou Qi Company have no evidence to prove that the technology company has waived its copyright under Chinese copyright law regarding the software involved through the GPLv2 agreement. Even if it is assumed that the technology company has a defect in rights due to a violation of the GPLv2 agreement, such a defect does not affect the technology company’s right to seek infringement remedies against the accused behavior in this case.
In summary, in infringement disputes where the software has not been open-sourced, the copyright holder believes that their software is not subject to the GPLv2 agreement, and the accused infringer raises a non-infringement defense based on the GPLv2 agreement, whether the software developer has violated the GPLv2 agreement and whether they enjoy copyright are two relatively independent legal issues that should not be conflated, to avoid unreasonably depriving or limiting the copyright that the software developer is entitled to based on their originality contributions. However, it should be noted that the final determination of infringement in this case and the support for part of the technology company’s claims do not indicate that the technology company will be exempt from any breach of contract and/or infringement liability it should bear in potential future breach and/or infringement lawsuits.
【Related Index】
Article 3, Item 8, and Article 10, Paragraph 1 of the Copyright Law of the People’s Republic of China (the applicable law in this case is the Copyright Law of the People’s Republic of China effective from April 1, 2010, Article 3, Item 8, and Article 10, Paragraph 1) and Article 2, Paragraph 1, Article 5, Paragraph 1, Article 7, Paragraph 1, and Article 8, Paragraph 1 of the Computer Software Protection Regulations.
This case has been included in the People’s Court Case Database
*Note: No reproduction without permission
Source: Supreme People’s Court Intellectual Property Court
Editor: Hou Ruying
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