Table of Contents
1. Origin
(1) Background
(2) Typical Cases
2. Analysis
(1) The Impact of Software on Copyright Legal Value
(2) The Purpose of the GPL License
(3) The Nature of the GPL License
(4) The Infectious Nature of the GPL License and Its Impact
(5) Consequences of Violating the GPL License
(6) The Impact of the GPL License’s Infectious Nature on Software Infringement Cases
3. Conclusion
1
Origin
(1) Background
In 1983, Richard M. Stallman initiated the free software movement known as “GNU” (which stands for “GNU’s Not Unix”)[Note 1]. The Linux operating system is one of the direct products of this movement. To prevent other commercial entities from misusing free software against the original intent of GNU, Stallman established the non-profit Free Software Foundation (FSF) and, together with lawyers, drafted the widely used GNU General Public License (GPL). The GPL created the so-called “Copyleft” licensing method, which is distinguished by its unique “strong infectious nature” from more permissive open-source licenses such as MIT, BSD, and Apache. According to Stallman’s explanation, the original meaning of “Copyleft” was “all rights reversed”[Note 2], which clearly subverts the term “Copyright” and its principle of “all rights reserved”.
With the rapid proliferation of the Internet and artificial intelligence, as well as the trend towards the smartization and miniaturization of electronic products, open-source software (Free and Open Source Software, FOSS), represented by Linux, has gained widespread application in the commercial sector. This has led to conflicts and negotiations between FOSS rights holders, represented by the FSF, and commercial entities involved in FOSS, particularly regarding the two versions of the GPL (v2[Note 3]/v3[Note 4])[Note 5].
(2) Typical Cases
After 2000, judicial cases related to the GPL began to spread in Europe and the United States, with the effectiveness of the GPL and Copyleft-style rights protection gradually being accepted and recognized by judicial authorities. The Internet industry in China rapidly entered a period of high-speed development after 2000, and these issues quickly came into the purview of judicial review in China, contributing classic cases such as “BLM Company vs. SL Company”, “SZTT vs. YZYD”, and the “LH” series of cases.
However, there are significant differences in the causes of action accepted by countries in Europe and America compared to China: the former mainly involves FOSS rights holders (or public interest organizations) claiming that commercial entities have violated the GPL and demanding cessation of infringement and compensation for damages; the latter includes a considerable proportion of defendants in software infringement cases arguing that the plaintiff has violated the GPL as a defense against infringement, aiming to reduce or even eliminate liability. Two typical cases are as follows:
WL Company Case: Nanjing Intermediate People’s Court (2021) Su 01 Min Chu 3229 (Judgment Date: September 19, 2022)
WL Company owns the copyright to the “WL Online Bidding Document Production Tool Software”. WL Company believes that the “YQT Software – Bidding Document Production Tool” released by YQT Company is highly similar in function and implementation to the plaintiff’s software, constituting infringement. YQT Company argues that the relevant functions of the Cell components such as SaveFile and CloseFile in WL Company’s software were developed by third parties, and WL Company does not hold the copyright. However, WL Company insists that its software code is not subject to the GPL. WL Company submitted a statement to the China Copyright Protection Center indicating that the software in question is not subject to the GPL. During the trial, WL Company stated in court that it would not disclose the source code of the bidding tool software in question.
The court held that: the main program source code of WL Company contains GPL declarations (version 2.0) in several files under the FutureZR folder, thus the main program is subject to the GPL, while the preview program is not. In this case, protecting the plaintiff’s violation of the GPL under tort law would inevitably undermine the GPL’s provisions regarding the continuous open-sourcing of source code, adversely affecting the dissemination of source code through the GPL. The preview program is not a derivative work of the GPL open-source code and is not infected by the GPL, thus it is not subject to the GPL. The plaintiff’s claim for copyright protection of that part of the software, as well as the determination of whether the defendant infringed that part of the software copyright, are not affected by the GPL.
Ultimately, the court partially supported WL Company’s claim for damages for infringement.
WJ Company Case: Supreme People’s Court (2021) Supreme Court Knowledge Civil Final 51 (Judgment Date: October 12, 2023)
WJ Company owns the copyright to the gateway product system software “OfficeTen”. WJ Company believes that YB Company and QA Company used the source code of “OfficeTen” in similar software, constituting infringement. YB Company and QA Company raised a defense of non-infringement, claiming that “OfficeTen” was developed based on the open-source software of the OpenWRT system and should comply with the constraints of the GPLv2. The rights belong to the rights holders of the OpenWRT system software. WJ Company is already obligated to publicly disclose the source code of the software in question, therefore, even if YB Company and QA Company used the source code of the software in question, such use would not constitute infringement.
The court held that: although the software in question involves the GPLv2 license, in the case where 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 in question is wholly or partially subject to the GPLv2, whether WJ Company violated the GPLv2, or whether WJ Company should bear any breach of contract or tort liability. Furthermore, regarding whether the software in question is subject to the GPLv2, this issue involves whether the underlying system software is subject to the GPLv2, whether the upper functional software constitutes an “independent and separate program” under the GPLv2, the isolation techniques, communication methods, and content used between the two, as well as the usual understanding and industry practices regarding the transmissibility of the GPLv2. In the case where the rights holder of the OpenWRT system software is not a party to this case, it is also difficult to ascertain the aforementioned series of facts related to the GPLv2. Moreover, YB Company and QA Company have no evidence to prove that WJ Company has waived its copyright under Chinese copyright law through the GPLv2. Conversely, even assuming that WJ Company has caused defects in rights due to violations of the GPLv2, such assumed defects do not affect WJ Company’s pursuit of tort relief in this case. In summary, in a tort dispute where the software has not been open-sourced, the software copyright holder believes that its software is not subject to the GPLv2, and the accused infringer raises a defense of non-infringement based on the GPLv2, whether the software developer has violated the GPLv2 and whether they hold the software copyright are two relatively independent legal issues that should not be conflated to avoid unreasonably depriving or limiting the software developer’s copyright based on their original contributions. However, it should be noted that the court’s final determination that the accused behavior constitutes infringement and partially supports WJ Company’s claims does not imply that WJ Company will be exempt from its legal obligations in potential breach and/or tort lawsuits in the future.
Ultimately, the court awarded YB Company and QA Company to compensate WJ Company 500,000 yuan and eliminate the impact.
The above two cases differ significantly in their analytical paths and adjudicative purposes:
1. In the WL Company case, the court examined whether the plaintiff violated its GPL agreement with a third party and adopted a similar “clean hands principle” approach, believing that “protecting the behavior of violating the GPL under tort law would inevitably undermine the GPL’s provisions regarding the continuous open-sourcing of source code”, thus determining that the defendant is not liable for infringement regarding the obligation to disclose part of the source code;
2. In the WJ Company case, the court, based on the principle of relativity of contracts, deemed it inappropriate to examine whether the plaintiff violated its GPL agreement with a third party; even if the plaintiff’s violation of such GPL agreement led to defects in the rights of the software in question, it does not affect the plaintiff’s pursuit of tort rights. The court further pointed out that in cases where the accused infringer raises a defense of non-infringement based on the open-source agreement, whether the software developer has violated the GPLv2 and whether they hold the software copyright are two relatively independent legal issues that should not be conflated to avoid unreasonably depriving or limiting the software developer’s copyright based on their original contributions.
The author has not yet found the appeal situation of the WL Company case, and this judgment document may not be the final result, but the WJ Company case has already taken legal effect. Just based on the two judgments, their differences raise further questions and thoughts on the following issues: the GPL is clearly not a traditional legal document; why create the Copyleft mechanism? What impact and consequences does compliance or violation of this mechanism have on commercial use and secondary development? Furthermore, what legal evaluations should be given to the actions of different users who successively violate the GPL?
2
Analysis
(1) The Impact of Software on Copyright Legal Value
The first U.S. Copyright Act was enacted in 1790, and the scope of legal protection has gradually extended from books and maps to music, drama, dance, fine arts, architecture, film, photography, and other artistic works. However, it was not until the 1980 amendment to the Copyright Act that software and its source code began to be recognized as a copyrightable object (prior to this, they were only considered general trade secrets). Even though software has been widely accepted as a copyrightable object, the ensuing value criticism has not ceased.
As Sapna Kunar pointed out: unlike books or music that are protected by copyright after expiration, publishers can print these books cheaply or upload them to the internet, and music can be digitized, remastered, or publicly released through CD burning. However, unlike these traditional forms of expression, software applications are highly dependent on technology. When a software copyright expires, the hardware devices that install the software become outdated, and the purpose of the software becomes void. Therefore, some scholars and software authors call for a significant reduction in the property protection of software, and some even advocate for the cancellation of legal protection for software. However, there are also groups attempting to establish a parallel knowledge-sharing system as a balancing measure to offset the strong property rights attributes of software copyright[Note 6].
FSF’s general counsel Eben Moglen pointed out[Note 7]: the essence of copyright law, like other property regulations, is an exclusive right. Copyright holders can legally exclude others from copying, distributing, and creating derivative works[Note 8]… while the GPL, on the other hand, subtracts from copyright rather than adds to it. The license does not need to be so complicated because we want to minimize restrictions on users. Copyright gives publishers the right to prohibit users from copying, modifying, and distributing, while we believe users should have those rights; thus, the GPL liberates almost all restrictions of the copyright system.
Software’s dependence on technology and its importance to the progress of human society far exceed that of other forms of expression protected by copyright. Given the developers’ ongoing technological monopoly over software, assuming that copyright law’s protection of software is equivalent to that of books, music, and other traditional rights could harm long-term public interests. Some viewpoints go even further, such as the father of free software, Stallman, who stated in his 2001 article “Science Must Push Copyright Aside”: “The existence of copyright is ‘to promote the progress of science.’ When copyright hinders scientific progress, science must discard copyright”[Note 9].
The birth of the GPL can be seen as a balance, weakening, and restriction of copyright protection for software.
(2) The Purpose of the GPL License
The FSF explains the purpose of the GNU movement on its website as follows[Note 10]:
The simplest way to make a program free software is to give up copyright on it and put it in the public domain. This allows others to share the software and its improvements when needed. But it also allows some who are unwilling to cooperate to turn it into proprietary software. They can modify it to some extent and release the results as commercial products. These modified programs no longer allow users to use them freely as their original authors intended; this freedom is stripped away by intermediaries.
In the GNU project, our goal is to allow all users to freely redistribute or modify GNU software. If we allow intermediaries to strip away this freedom, we might “gain many users”, but these users would no longer have freedom. Therefore, we do not release GNU software into the public domain; we retain “Copyleft”. Copyleft means that anyone can redistribute the software, whether modified or not, but must simultaneously preserve the freedoms that the software has. Copyleft is to ensure that all users have freedom.
The FSF believes that copyright deprives users of the freedom to use software. To solve this problem, their solution is quite reminiscent of the traditional Chinese wisdom of “using the spear against the shield”[Note 11]:
A program follows Copyleft; we first declare it copyrighted; then we add a release clause, which is a legal statement that grants everyone the right to use, modify, and redistribute the code of the program and its derivative works, but requires that the release rules remain unchanged in the process. In this way, the code and the rights to freedom are legally inseparable.
Commercial software developers deprive users of freedom through copyright; we use copyright to give them freedom. This is why we call “Copyright” as “Copyleft”.
Copyleft is a method of copyright protection for programs. It does not mean giving up copyright; in fact, doing so would make Copyleft unworkable. The “left” in “Copyleft” does not use its meaning of “leaving” in English, but refers to its mirrored relationship with the usual “Copyright”.
Sapna Kunar incisively points out that the philosophy behind open-source software is essentially against maximizing profits through software monopolization[Note 12].
The GPL achieves this purpose through its infectious clauses (Infection), which is also a hallmark that distinguishes the GPL from more permissive licenses like MIT, BSD, and Apache, which I will elaborate on in Part 3.
From a legal technical perspective, the GPL is not a traditional, typical legal document. From its drafting process, the GPL can be said to be the work of programmers, with lawyers participating primarily to ensure that the goals of the programmers can be realized in legal enforcement. The purpose of the GPL is to use tools in copyright law to oppose the “overprotection” of copyright law for software. Therefore, studying, interpreting, and applying the GPL solely from the perspective of copyright law may lead to logical inconsistencies.
Before we study the GPL clauses, we must understand the purpose behind the authors writing these clauses.
(3) The Nature of the GPL License
In the early practice of the GPL in the U.S. judicial system, most cases were settled through mediation (e.g., FSF vs. Cisco), and the issue of the GPL’s qualification did not enter the professional field, while Germany became the first jurisdiction to clearly recognize the GPL as having contractual effect.
However, as Zhang Taolue pointed out[Note 13]:
The FSF and its founder Richard Stallman have been outspoken in opposing the legal qualification of the GNU GPL as a contract. Article 5 of GPL v2 clearly states that the establishment of the free software licensing relationship does not need to follow the offer and acceptance process of ordinary contracts—”because you have not signed this license, you do not need to (indicate) acceptance of this license.” The title of Article 9 of the GPL v3 draft even directly states that the GPL is not a contract, which was later deleted, likely considering that the target audience of GPL v3 is mainly outside the U.S., where it cannot avoid the regulation of contract law (at that time, German courts had already clarified the applicability of the German Civil Code’s contract rules to GPL v2). The FSF insists that the legal nature of the GPL does not belong to a contract for specific reasons under U.S. law.
First, the FSF resists the promotion of the model law in the U.S. contract law field, the Uniform Computer Information Trade Act (UCITA), believing that the application of this model law is detrimental to free software. The FSF even directly calls on the free software industry to resist UCITA, producing the statement that “UCITA is a legal proposal designed by proprietary software developers that will catastrophically threaten the free software community.”
Second, U.S. contract law falls under state law; if the legal qualification of the GPL is a contract, then in litigation, it will first face the review of the “federal preemption principle”, determining whether federal copyright law takes precedence and thus excludes the applicability of state contract law under U.S. Copyright Law Section 301. If state law is ultimately applicable, then the legal effect of the GPL and its Copyleft clauses will depend on the statutory and case law of each state’s contract law. This legal enforcement process will have significant uncertainty and could lead to inconsistent judgments (for example, some states’ contract law has stricter case law rules regarding the consideration or cause of contracts), which is not a situation the free software community wishes to see.
In contrast, if we interpret the GPL’s literal meaning as a general public “license”, recognizing the GPL as a copyright license, then the effectiveness of the Copyleft clause under U.S. law will be more solid: on the one hand, it can directly leverage the exclusivity of copyright to have effect against the world, without considering the constraints of contract relativity; on the other hand, according to the relevant provisions of the license, once a software user violates the license, the copyright license is terminated.
Regarding the distinction between “copyright contracts” and “copyright licenses” in U.S. copyright law, Maxime Lambrecht[Note 14] points out:
In U.S. law, as in other common law systems, property law distinguishes between contractual licenses (Contractual License) and “bare licenses” (Bare License)[Note 15]. If certain conditions exist: offer, acceptance, and consideration, the license can be viewed as a contract. However, a license can also be viewed as a “bare license”: the licensor allows the licensee to do something that the law does not permit her to do.
Therefore, in our case, a bare license is a “copyright license”, which is a unilateral permission to use the work under specific conditions, and violations will be subject to copyright injunctions. There are many differences between these two systems. Unlike contracts, a bare license does not require the licensee’s consent: it merely indicates the conditions under which the work can be used without infringing copyright. If these conditions are not met, the license ceases to exist, and the violator will infringe copyright. Therefore, violations of a bare license will be subject to strict liability under copyright law and severe statutory damages. Additionally, while the termination of a contract is subject to legal (and contractual) restrictions, a bare license can be revoked at any time.
So far, it seems that the U.S. judiciary’s attitude towards the GPL is still oscillating between “copyright contracts” and “copyright licenses” (bare licenses), as seen in cases like Jacobsen v. Katzer and Artifex Software Inc. v. Hancom Inc.
Fortunately, China does not have the dichotomy of contractual licenses and bare licenses, nor the dilemma of choosing between federal law and state law. Similar to German law, under China’s legal system (especially Chapter 7 of the Copyright Law), the GPL can only be uniquely interpreted as having contractual effect. However, it must be emphasized that the GPL has contractual effect because there is no other reasonable interpretation space under China’s legal system, but according to the original intention of the GPL’s designers, they do not consider it a contract; the GPL should have effect against the world to maximize the achievement of its design goals.
While interpreting the GPL as a contract, we should not overlook the aforementioned purpose.
(4) The Infectious Nature of the GPL License and Its Impact
As mentioned earlier, the purpose of the GPL is mainly achieved through its infectious clauses, taking versions v2/v3 as examples:
v2
……
2. You may modify any part of your copy of the software to create derivative works of the software and copy and distribute the modified version under the following three conditions:
a) You must prominently state your modifications in the modified files and indicate the date of modification;
b) You must make the work you distribute or publish, in whole or in part, include this program or its derivative works, allowing third parties to use it under this agreement, and you may not charge for the license;
c) (omitted)
v3
……
4. Publishing Unmodified Copies You may publish unmodified complete copies of the program’s source code by any medium, as long as you prominently and appropriately publish a suitable copyright notice on each copy; keep intact all statements of this license and any non-permissive terms added under Section 7; keep intact all disclaimers; and provide all recipients of the program with a copy of this license.
5. Publishing Modified Source Code You may publish a software based on this program or modified from this program in the form of source code as specified in Section 4, as long as you simultaneously meet all of the following conditions: a) The work must clearly state that it has been modified and provide the corresponding modification date; b) The work must clearly state that it is licensed under this license and this license…; c) You must license the entire software as a whole to anyone who obtains a copy under this license… (omitted)
The FSF’s FAQ published on its website[Note 16] regarding the GPL clauses has been fully respected by Chinese judicial authorities and has been cited multiple times in relevant judgments. According to these explanations, accepting and using GPL-licensed FOSS means allowing (or prohibiting) the following:
1. For FOSS subject to the GPL, you can freely and without charge use and modify it;
2. If you need to redistribute (i.e., provide to other organizations or individuals) the aforementioned FOSS, including unmodified or modified versions (i.e., the open-source nature infecting non-independent modified or derivative versions, unless the software is independent of FOSS and you do not agree to open-source it), you need to publish copyright notices according to the GPL requirements and allow anyone to continue using it for free under the same rules;
3. Regardless of whether it is for commercial purposes, you can use and modify the aforementioned FOSS internally within your organization without restriction (unless it is under the AGPL, even providing commercial online services in a SaaS form on the website can be considered internal use), including unmodified or modified versions; in this case, the GPL does not force infection or require you to disclose the modified version, provided that it is not redistributed externally; if redistribution is required, you need to comply with the aforementioned open-source rules;
4. Subject to the aforementioned open-source obligations of the GPL, the GPL does not restrict you from charging fees when distributing FOSS (including unmodified or modified versions), whether for sale or donation, but you may not make payment a prerequisite or mandatory obligation for obtaining FOSS. In other words, if commercial software uses FOSS and is infected, external sales (whether sold separately or bundled with machines) may violate the GPL; unless the commercial software can independently distinguish between the open-source and non-open-source parts, ensuring that the non-open-source part is not infected by the open-source part, and ensuring that the open-source part still complies with the GPL during the sales process;[Note 17]
5. In addition to the obligations specified in the GPL itself, the GPL requires that the open-sourcing of FOSS not impose any additional obligations, including not restricting commercial use in accordance with the GPL, nor restricting military use in accordance with the GPL.
Furthermore, regarding the specific manifestations of the GPL’s infectious nature, the FSF lists some recognition rules and specific scenarios in its FAQ, but wisely leaves the determination of specific infectious judgment rules to the judiciary. However, from the judicial practice related to the GPL, Chinese judicial authorities have been relatively lenient and friendly in accepting the FSF’s corresponding explanations and rules.
(5) Consequences of Violating the GPL License
The GPL’s deviation from traditional law has led to early doubts about whether the law would truly recognize and enforce it. For example, Microsoft sparked a debate around 2001 regarding whether the GPL could be enforced, until the U.S. Court of Appeals ultimately provided a conclusive result in Jacobsen v. Katzer in 2010. To date, most countries recognize the GPL as a legally enforceable contract (although there is still some debate regarding its nature), and violating the GPL will incur corresponding consequences.
Taking the GPL v2 version as an example, the legal consequence of violating the GPL is the permanent termination of the license, as stipulated in Article 7: if you cannot meet the requirements of this agreement and other documents when distributing this program, you cannot distribute this program. This point is further clarified in the GPL v3 version, which states in Article 8: unless explicitly authorized in this agreement, you may not distribute or modify the protected work. Any attempt to distribute or modify the protected work is invalid and will automatically terminate your rights obtained through this agreement.
The GPL v3 version also makes two important exceptions: (1) for first-time offenders, if you receive a notice from a specific copyright holder regarding your violation of this agreement (for any work), and correct it within 30 days of receiving the notice, you may continue to enjoy this license; (2) when your rights as described in this article are terminated, the rights of others who have obtained authorization from you under this agreement will not be terminated.
In addition to terminating the authorization, according to the usual legal principles in various countries, violating the GPL also raises issues of tort damages, but the drafters of the GPL explicitly do not prioritize damages as the primary purpose of rights protection, again diverging from the principles of rights advocated by copyright law.
FSF’s general counsel Eben Moglen pointed out in his article “Enforcing the GNU GPL”[Note 18] that for violations of the CPL agreement, the FSF’s usual request is merely to require correction and establish a corporate-level GPL compliance program:
In nearly ten years of implementing the GPL, I have never insisted that the violating party pay damages resulting from the violation to the foundation, nor have I rarely required the violating party to publicly acknowledge the error. Our position has always been to ensure compliance and prevent further violations as the most important goal. We try to make it easier for violators to comply, and we have always been forgiving.
This idea is also reflected in the revision of the GPL v3 version; unlike the v2 version, first-time offenders of the GPL v3 version are allowed to continue enjoying the license if they correct the violation within 30 days of receiving the notice. Of course, the FSF believes that the issue of damages for violating the GPL should be judged by the judiciary, and the judiciary, when applying the laws of different jurisdictions, especially when interpreting the GPL as a contract, cannot ignore the FSF’s attitude towards tort damages. As Zhang Taolue pointed out[Note 19]: In the domestic LH series of cases, we see that free software copyright holders have respectively claimed high damages of 15 million (LH vs. WY) and 20 million (LH vs. FL)[Note 20], such claims clearly prioritize economic interests as the main goal, which has begun to carry the flavor of “copyright trolls”, and is completely contrary to the philosophy of the FSF’s free software community. For such behavior, Chinese courts should apply the relevant rules for calculating damages strictly based on the principles and ideals advocated by the free software license itself and the community.
In the LH vs. FL case, the Shenzhen Intermediate People’s Court, considering the role of open-source software in the infringing software, the FOSS rights holder’s compliance with the GPL, the licensing situation of commercial versions of open-source software, and the nature of the infringer’s infringement, the duration of infringement, and refusal to comply with the open-source agreement, determined that the infringer should compensate 500,000 yuan, while the FOSS rights holder’s claim was for damages (20 million yuan) and litigation costs (50,000 yuan). In the LH vs. WY case, the Guangzhou Intellectual Property Court similarly determined that the infringer should compensate 500,000 yuan, while the FOSS rights holder’s claim was for damages (15 million yuan) and litigation costs (150,000 yuan). Interestingly, in the WJ Company case, the court also determined that the infringer should compensate 500,000 yuan, which cannot be entirely explained as a coincidence.
Finally, in cases where users violate the GPL and fail to disclose the source code of the derivative software, can FOSS rights holders force users to disclose the source code of the aforementioned derivative software according to the GPL? Zhang Taolue’s view[Note 21] is that, at this stage, it is only of theoretical significance, and the possibility of courts in China and abroad supporting such radical claims is very low.
(6) The Impact of the GPL License’s Infectious Nature on Software Infringement Cases
1. Single Infringement Cases
According to the aforementioned rules, assuming a specific FOSS rights holder releases a FOSS and adds the GPL license, and a user uses the aforementioned FOSS in commercial software and infects it to derivative software:
(1) If the user fails to comply with the provisions of GPL v2 when publishing commercial software, according to the provisions of GPL v2, the user’s authorization will be permanently terminated, and theoretically, the FOSS rights holder has the right to claim damages from the user;
(2) If the user fails to comply with the provisions of GPL v3 when publishing commercial software, according to the provisions of GPL v3, the FOSS rights holder should give the first-time offender a 30-day grace period for correction; if the user fails to open-source according to the GPL within the time limit, the user’s authorization will be terminated, and theoretically, the FOSS rights holder has the right to claim damages from the user.
However, the original intention of the GPL is only to stop the user’s non-compliance behavior; if the judiciary grants high damages based on the general principles of copyright law, it does not align with the purpose of the GPL.
2. Continuous Infringement Cases
In continuous infringement cases, assuming a specific FOSS rights holder releases a FOSS and adds the GPL license, and user 1 uses the aforementioned FOSS in commercial software 1 and infects it to derivative software (if any) but fails to open-source the derivative software’s source code according to the GPL, while user 2 modifies commercial software 1 to form commercial software 2 without user 1’s consent, also failing to open-source its modified source code (if any). This situation is more complex but is quite common in Chinese judicial practice. Let’s analyze it as follows:
(1) In commercial software 1, the open-source part belonging to the FOSS rights holder (unmodified part), assuming the provisions of GPL v2 apply, since user 1 failed to open-source the derivative software’s source code according to the GPL, the authorization for using the FOSS rights holder’s open-source part is terminated;
(2) The derivative part that should be open-sourced due to modifications, compilations, etc., of the FOSS rights holder’s open-source part should not easily deny user 1’s copyright. Although the GPL stipulates that the derivative part should be open-sourced, according to the GPL’s provisions and the principles of copyright law, the consequence of user 1 not disclosing the source code of the derivative part is merely losing the authorization to use the open-source part; the GPL itself does not stipulate that the copyright of the derivative part is forfeited due to infection. Furthermore, under the restrictions of the relative principle of contracts in China’s Civil Code, third parties other than the FOSS rights holder should have no right to require user 1 to disclose the source code of the derivative part; moreover, even within the current legal framework, it is difficult for the FOSS rights holder to force user 1 to disclose the aforementioned source code. Therefore, user 2’s liability for infringing the derivative part should be undisputed. However, it should be noted that the purpose of the GPL carries a strong public interest and effect against the world; user 1 should be considered to be aware of the GPL’s restrictions on their derivative part when using the FOSS open-source software, and the judiciary should fully consider this when determining user 2’s corresponding liability for infringement, showing due respect to the GPL;
(3) The independent part of commercial software 1 that is not infected, even according to the GPL, still belongs to user 1’s copyright, and user 2 should bear liability for infringement according to the Copyright Law.
3
Conclusion
Article 1 of China’s Copyright Law clearly states that the purpose of copyright is to “protect the copyright of authors of literary, artistic, and scientific works, as well as related rights associated with copyright.” However, the purpose of the GPL is not so.
The drafters of the GPL believe that software should not be overprotected by copyright law, hoping to balance and weaken the property nature of software, resisting the powerful property attributes that software acquires after copyright. Ironically, they ultimately chose to achieve this purpose through copyright protection, ensuring the free dissemination, use, and modification of software, a function primarily realized through the infectious clauses in the GPL. The drafters of the GPL believe that even if the way to ensure software freedom is through copyright protection, the goal effect is merely to promote compliance by violators: respect open-source, promote software freedom. They do not pursue damages as a remedy for violating the GPL, as this contradicts the purpose of designing this mechanism. Secondly, they hope that the GPL has effect against the world, rather than merely being a contract between FOSS rights holders and users (at least under the common law system). However, they also respect different jurisdictions treating the GPL as a contract (as can be inferred from the revision process of GPL v3).
Returning to the initial question, in the WL case, the drafters of the GPL would certainly applaud the statement: “Protecting the plaintiff’s violation of the GPL under tort law would inevitably undermine the GPL’s provisions regarding the continuous open-sourcing of source code”; however, from a legal perspective, this may be biased (of course, this may also be due to the length of the judgment document, which prevents us from grasping all the facts). As mentioned earlier, WL Company holds no rights in open-source software, especially given its violation of the GPL; granting tort protection is inconsistent with the spirit of the law; however, if WL Company processes open-source software to form derivative software, and WL Company fails to disclose the source code of the derivative software, leading to its violation of the GPL, the consequences of breach would only be that WL Company loses the right to continue using the open-source software, but the GPL does not exclude WL Company from holding copyright over the derivative software, which should be protected to some extent according to the Copyright Law, especially in cases of malicious use by the infringer; otherwise, it may lead to substantive injustice.
As for the WJ Company case, I hold reservations about the judge’s analytical approach of not addressing whether WJ Company violated the GPL based on the relativity of contracts. First, the GPL does not authorize user 1 to exercise the right to sue regarding the open-source part; regardless of whether the GPL is terminated, user 1 has no right to sue or win regarding the open-source part. Second, according to the provisions of GPL v2, WJ Company’s breach directly leads to the permanent loss of its license for the open-source software part, and the license under the GPL does not have the property rights under the Copyright Law, nor does it generate the benefits of re-licensing; if so, how to determine the object of infringement for the accused infringer? How to define the scope and degree of damages? Clearly, this will lead to a judgment that cannot logically be coherent. Moreover, the purpose of the GPL itself carries a strong effect against the world; although there is no corresponding basis in China’s Civil Code, this factor should not be overlooked when interpreting the clauses of the GPL. Of course, it is also possible that due to the length of the judgment document, the judge may have fully considered the proportion of the open-source part and the derivative part in the object of infringement, ultimately giving a judgment result that I consider fair.
In fact, similar cases have appeared in the U.S. as early as 2004. In the case of Computer Associates International, Inc. (“CA”) vs. Quest Software, Inc. (“QUEST”) and its employees, the defendant Quest Company pointed out that the software claimed to be infringed by the plaintiff contained open-source code that violated the GPL. A considerable number of American scholars and judicial figures believe that, according to the “clean hands principle” established by the U.S. Supreme Court in the 1945 case of Precision Instrument Mfg. Co. v. Automotive Co., if the plaintiff violates the GPL and attempts to sue the defendant for infringing software copyright, the defendant can raise a defense based on the plaintiff’s failure to meet the clean hands principle[Note 22]. Ultimately, CA and QUEST settled the case. In software infringement cases involving the GPL, all parties need to introspect: are they entering the court with clean hands?
Notes and References
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[1] Before Linux achieved great success, the free software movement was not well known, and it is well known that the birth of Linux was a rebellion against Unix.
[2] See https://www.gnu.org/gnu/thegnuproject.html, footnote 3, last accessed on January 18, 2024.
[3] https://www.gnu.org/licenses/old-licenses/gpl-2.0.html#SEC3, unofficial Chinese translation can be found at https://jxself.org/translations/gpl-2.zh.shtml
[4] https://www.gnu.org/licenses/gpl-3.0.html, unofficial Chinese translation can be found at https://jxself.org/translations/gpl-3.zh.shtml
[5] The first version of the GPL v1 was released in 1989. The GPL v3 version was released in 2007 but did not replace the GPL v2 version; both versions currently coexist, with GPL v2 still being the most commonly used among the various versions of the GPL, in addition to the more permissive LGPL and the stricter AGPL. Only the original developers of the open-source software can choose which GPL license to apply.
[6] Sapna Kumar: “ENFORCING THE GNU GPL”, P2, see https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2505&context=faculty_scholarship, last accessed on January 18, 2024.
[7] https://www.gnu.org/philosophy/enforcing-gpl.zh-cn.html, last accessed on January 28, 2024.
[8] As Ding Hua and Chen Daiyuan stated: the GPL open-source license has “vertical” and “horizontal” dimensions of “infectiousness”. In the “vertical” dimension of “infectiousness”, open-source software will “infect” its modified versions (modifications) or derivative works (a work based on the Program). For example, GPL.v2 grants subsequent developers the right to modify open-source software (and its copies), but for modified versions or derivative works, once it involves distribution (distribute) or publication (publish), it must meet the requirement that the modified version continues to be open-sourced under the corresponding GPL license. In the “horizontal” dimension of “infectiousness”, under certain conditions, open-source software will “infect” itself and modified versions beyond the software or other parts of the software being distributed or transmitted. For example, GPL.v3 stipulates that if the open-source software is combined with other software for the purpose of generating a larger program, then the other software must also become open-source software subject to the corresponding GPL license. See https://www.allbrightlaw.com/CN/10475/5d3121e725d018ea.aspx, last accessed on January 18, 2024.
In this article, for the sake of convenience, I will refer to the “infected” parts of both the “vertical” and “horizontal” dimensions as “derivative works”.
[9] https://my.fsf.org/donate?mtm_campaign=fall23&mtm_source=banner, last accessed on January 18, 2024.
[10] https://www.gnu.org//licenses/copyleft.zh-cn.html, last accessed on January 18, 2024.
[11] Same as above.
[12] Sapna Kumar: “ENFORCING THE GNU GPL”, P4, see https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2505&context=faculty_scholarship, last accessed on January 18, 2024.
[13] Zhang Taolue: “Request to Stop Infringement or Disclose Code? – The Responsibility for Violating Free Software ‘Copyleft’ License Terms”, published in Electronic Intellectual Property, 2022, Issue 8.
[14] See https://www.technollama.co.uk/us-court-declares-gpl-is-a-contract, last accessed on January 18, 2024.
[15] Also known as pure license, this is generally considered a concept in property law in common law. Sapna Kumar points out that a pure license is a revocable permission to engage in a certain act, which, if not granted, would lead to a violation of the law. With this license, the licensee can legally enter another’s land to engage in a certain act… Outside of property law, such licenses include parking permits, forestry licenses, and marriage licenses, most of which are issued by the government.
For civil law countries and China, the above licenses carry a strong public law color and are usually not issued by private individuals or organizations.
[16] See https://www.gnu.org/licenses/gpl-faq.en.html, last accessed on January 18, 2024.
[17] Some commercial software retains two options for users: to apply the open-source agreement and bear the open-source obligations for free use of the software; or to purchase a commercial license from the rights holder, without bearing subsequent open-source obligations. From the perspective of the GPL, this does not seem to violate the GPL.
[18] https://www.gnu.org/philosophy/enforcing-gpl.zh-cn.html, last accessed on January 18, 2024.
[19] Zhang Taolue: “Request to Stop Infringement or Disclose Code? – The Responsibility for Violating Free Software ‘Copyleft’ License Terms”, published in Electronic Intellectual Property, 2022, Issue 8.
[20] Jining Luohuo Network Technology Co., Ltd. vs. Guangzhou Playfriend Network Technology Co., Ltd. and others for infringement of computer software copyright dispute (Guangzhou Intellectual Property Court (2019) Yue 73 Zhi Min Chu 207 Civil Judgment).
[21] Zhang Taolue: “Request to Stop Infringement or Disclose Code? – The Responsibility for Violating Free Software ‘Copyleft’ License Terms”, published in Electronic Intellectual Property, 2022, Issue 8.
[22] Sapna Kumar: “ENFORCING THE GNU GPL”, P31, see https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2505&context=faculty_scholarship, last accessed on January 18, 2024.
Author Profile
Yu Feng
Partner at Grandall Suzhou
Business Areas: Investment and Mergers & Acquisitions, Investment Funds and Private Equity
Email: [email protected]
【 Special Statement: The views and explanations presented in this article only represent the author’s personal opinions and are for reference and communication only, and do not represent any form of legal opinions or advice issued by this firm or its lawyers.】
