[FREE SOFTWARE AND OPEN SOURCE: COUNTERFEITING OR PARASITISM]

[INTELLECTUAL PROPERTY - COUNTERFEITING - PARASITISM - FREE LICENCE - COMMERCIAL LICENCE - FREE SOFTWARE - OPEN SOURCE]

🚨 Software can be used under a licence agreement (e.g. proprietary licence, commercial licence, free licence). Cases of ambiguity regarding the legality of the use of software may arise in the case of Free Software or Open Source licences, particularly in relation to issues of infringement or parasitic economic practices.

⚖️ In 2003, ENTR'OUVERT designed a software package called "LASSO", which enabled a single sign-on ("SSO") system to be set up. This software was distributed either under the GNU GPL version 2 free licence without payment of royalties, or under a commercial licence.

At the end of 2005, an invitation to tender was issued by the Agency for the Government of Electronic Administration ("ADAE"), which later became part of the Directorate General for State Modernisation ("DGME"), for the design and production of the ‘Mon service Public’ portal. Orange SA won the contract for lot 2 (for the supply of an identity management IT solution and interface resources for service providers). In this context, Orange SA proposed a solution including the interfacing of the ‘Identity Management Platform’ ("IDMP") by integrating the LASSO software under a free licence ("Project").

On 29 April 2011, ENTR'OUVERT sued Orange for copyright infringement and parasitism, with Orange Application for Business as a voluntary intervener in the proceedings. ENTR'OUVERT claimed that the use of the LASSO software as part of the Project did not comply with articles 1 and 2 of the free licence.

On 21 June 2019, the Tribunal de Grande Instance ("TGI") of Paris declared ENTR'OUVERT inadmissible to sue for infringement in tort and rejected its claims for parasitism (TGI of Paris - ch.03, sect.03, 21 June 2019, 11/07081).

ENTR'OUVERT appealed, seeking to overturn the Paris TGI's judgment of 21 June 2019.

On 19 March 2021, the Paris Court of Appeal partially reversed the judgment of the Paris Cour de Cassation of 21 June 2019. It confirmed ‘the interlocutory judgment except insofar as it dismissed ENTR'OUVERT's claims on the basis of parasitic competition’ and ordered Orange SA to pay ENTR'OUVERT 150 000 euros for parasitic competition (Paris Court of Appeal, Pôle 05, ch.02, 19 March 2021,19/17493).

On 5 October 2022, the Cour de cassation recalled that the law of civil liability is based on the principle of the non-accumulation of delictual and contractual liability to compensate for damage suffered on the basis of the same operative event. Contractual liability prevails where the parties are bound by a valid contract and the damage suffered by one of the parties results from the non-performance or improper performance of a contractual obligation.

The Cour de Cassation refers to the decision of the Court of Justice of the European Union (CJEU, 18 December 2009, IT Development v Free Mobile, Case C-666/18) on the interpretation of Directives 2004/48/EC and 2009/24/EC: the breach of a clause in a computer programme licence agreement, relating to the intellectual property rights of the holder of the copyright in that programme, falls within the concept of infringement of intellectual property rights. Under French law, only the infringement action provided for in the French Intellectual Property Code offers the holder of copyright in a computer program the guarantees provided for in the said Directive; ENTR'OUVERT is therefore entitled to bring an infringement action even if the infringement of its copyright results from the breach of a clause in a licence agreement.

Thus, ruling within the limits of the partial annulment, it ‘ANNULS, but only insofar as it declares ENTR'OUVERT inadmissible to bring an infringement action, the judgment handed down on 19 March 2021, between the parties, by the Paris Court of Appeal; restores, on this point, the case and the parties to the status they were in before this judgment and refers them back to the Paris Court of Appeal otherwise composed’ (CCass, Ch. Civ. 1, 05.10.2022, 21-15.386).

On 8 January 2024, the Paris Court of Appeal ‘[reversed] the judgment insofar as it declared ENTR'OUVERT inadmissible to sue on the tort of infringement and its ancillary claims; ruled again and added (...) Holds that the companies Orange and Orange Business Services have committed acts of infringement of the LASSO software by violating articles 2, 3, 4 and 10 of the associated licence agreement known as GNU GPL v2 and by failing to respect its moral rights. (Paris Court of Appeal, 14 February 2024, 22/18071).

⚠The genesis of ‘free software’ (General Public License) dates back to the beginnings of modern computing, but its principles and philosophy were popularised in the 1980s, notably by Richard Stallman, founder of the Free Software Foundation (FSF), and his ‘Gnu is Not Unix General Public License’ (GNU GPL) project in 1989.

NB: The terminology ‘Open Source’ (any Software distributed or made available to the public in Source Code under the terms of a Free Licence) was coined on 3 February 1998 in Palo Alto, California, at a strategy meeting organised by members of the free software movement, as suggested by Christine Peterson with a view to distinguishing it from ‘free software’.

(INPI, ‘Definition of essential terms’,

https://www.inpi.fr/sites/default/files/definitions_consortium.pdf)

#opensource #licence #licencelibre #IP #PI #GPL #parasitism #commercial #counterfeiting