In cases involving the infringement of computer software copyright, the concerned software developer’s fulfillment of the open source obligations is not necessarily correlated to their entitlement to copyright over the software in question based on their creative contributions. Courts generally do not support arguments by accused infringers that they did not violate the software copyright solely because the developer failed to comply with the open-source license.
Company A alleges: Company A developed a gateway product system software and obtained a Copyright Recordation Certificate from the National Copyright Administration in 2013. Companies B in Zhejiang, C in Suzhou, and others illegally acquired and copied the source code of the copyrighted software owned by Company A, modified the source code, and openly sold gateway products containing software highly similar to the software in question in the market. These actions infringed upon the rights of reproduction, modification, and distribution of the software in question, resulting in substantial profits, while also violating Company A's right to remuneration as the copyright holder. Therefore, Company A requested that companies B in Zhejiang, C in Suzhou, etc., cease the infringement, issue an apology, eliminate the impact, and assume corresponding compensation responsibilities.
Companies B and C argued: The source code information claimed by Company A is open-source code developed following the OpenWRT system software open-source code agreement. Even if it was genuinely developed by Company A, they cannot obtain copyright, as the copyright should belong to the original authors of the OpenWRT system software. Moreover, Company A has no evidence to prove their independent development.
The first-instance court found after trial: The full name of the GPLv2 license is GNU General Public License, version 2. The publisher of the GPLv2 license is the Free Software Foundation. The OpenWRT system software is a system control operation software in the communication field, which is open-source software licensed under the GPLv2 license. Many people have contributed to the code of OpenWRT system software and developers could obtain the source code of OpenWRT system software freely on the international Internet. The software in question is a derivative software developed based on the OpenWRT system software and can be divided into two parts: one part is the underlying system of the software in question formed from deletions, modifications, and adjustments to the source code of the OpenWRT system software, and the other part is the upper-layer functional software formed by additional source code corresponding to specific functions of the software in question. Company A claimed to have established an isolation layer between the underlying system software and the upper-layer functional software using technical means like sockets and command lines, and that the communications between the two parts do not involve internal data construction information. By these settings, Company A ensures that the upper-layer functional software constitutes a “separate and distinct” program under the GPLv2 license and thus is not bound by the GPLv2 license. The accused software was created by an employee of Company C who, exploiting his previous employment at Company A, accessed Company A’s server, downloaded the source code of the software in question, made minor modifications, and produced software with essentially the same functionality. According to expert opinions from a particular computer judicial appraisal agency in Shanghai and the testimony given by their personnel in court during the first instance, the source codes of the software in question and the accused software are substantially similar. Additionally, there is no evidence in this case showing that Company C took any isolation technology measures to prevent the constraints of the GPLv2 license.
The first-instance court rendered a civil judgment on July 14, 2020: 1. Companies B and C immediately cease the infringement of Company A’s computer software copyright. 2. Companies B and C jointly compensate Company A for economic losses and reasonable legal expenses. 3. Company B must publish a notice on its official website regarding the infringement to eliminate its effects (the publication period should not be less than 15 consecutive days and the content must be reviewed by the court). 4. Dismissal of other claims made by Company A. Following the judgment, Companies B and C lodged an appeal, arguing that the software in question is bound by the GPLv2 license, according to which, Company A already had an obligation to publicly release the source code of the software in question. Therefore, even if Companies B and C used the source code of the software in question, their usage does not constitute infringement. The Supreme People's Court ruled on October 12, 2023: the appeal was rejected, and the original judgment was upheld.
The effective judgment by the court concluded that the non-infringement defense raised by Companies B and C based on the GPLv2 license was not valid, for the following reasons:
Firstly, this case pertains to a copyright infringement dispute concerning the software in question, not a contractual dispute. Although the software in question involves the GPLv2 license as a licensing contract, given that the right owner of the OpenWRT system software is not a party involved in this case, based on the principle of privity of contract, it is not appropriate for this case to consider whether the software in question is fully or partially bound by the GPLv2 license, whether Company A violated the GPLv2 license and should therefore bear any breach or infringement liability. Secondly, concerning whether the software in question is bound by the GPLv2 license, this entails considerations of factors such as whether the underlying system software is bound by the GPLv2 license, whether the upper-layer functional software qualifies as a “separate and distinct” program under the GPLv2 license, and the definition of isolation technology methods, communication methods, communication content, and other relevant factors. Additionally, common understanding and industry norms and practices in the software field regarding the application of the GPLv2 license are also relevant. Given that the right owner of the OpenWRT system software is not a party in this case, it is also difficult to ascertain the aforementioned series of facts related to the GPLv2 license. Furthermore, Companies B and C have no evidence to demonstrate that Company A has relinquished its copyright under China's Copyright Law for the software in question through the GPLv2 license. In conclusion, even if it is assumed that Company A’s alleged violation of the GPLv2 license resulted in a rights defect in the software in question, such presumed defects do not impact Company A’s pursuit of infringement remedies against the accused acts in this case.
In summary, in copyright disputes where the software has not been open-sourced, the software copyright owner argues that their software is not bound by the GPLv2 license, while the accused infringers raise a non-infringement defense based on the GPLv2 license, whether the software developer has violated the GPLv2 license and whether they hold the software copyright are two relatively independent legal issues. They should not be conflated to avoid unreasonable deprivation of or limitations on the software developer’s copyright that they lawfully deserve based on their original contributions. However, it should be noted that the final determination that deemed the accused actions constitute infringement and supported some of Company A’s claims in this case does not imply that Company A will be exempt from bearing any breach and/or infringement liability they are legally obligated to assume in potential breach or infringement lawsuits in the future.
(2021) Zui Gao Fa Zhi Min Zhong No. 51
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