author ： Lawyer Chen Yuanxi , Haihua Yongtai law firm partner
Ministry of industry 《“ the 14th Five-Year Plan ” Notice on the development plan of software and information technology service industry 》 Put forward “ Prosper domestic open source ecology ” The goal of , China will vigorously develop domestic open source foundations and other open source organizations , Improve open source software governance rules , Popularize open source software culture . Governance and ecological construction of open source software , It is inseparable from the legal protection of the copyright of the authors of open source software .
This article will analyze the recent Chinese Courts about GPL3.0 Practical precedents of licensing , Preliminary discussion on the nature and legal effect of open source license under Chinese law , Open source software infringement disputes and compensation , In order to protect their rights for open source software developers and users 、 Avoid disputes and provide references .
One 、 Open source software author judgment and subject eligibility
- Open source software is protected by copyright law
Computer software is 《 Copyright law 》 Clearly defined works , Works whether published or not , All authors should enjoy copyright . Open source software has been released on the network platform , Software available for user access , The author's rights include publishing 、 A signature 、 modify 、 Copy 、 Network information dissemination and other copyrights . therefore , The author of open source software is the copyright owner , You can protect your legitimate rights and interests according to law , And require the infringer to bear the corresponding liability in case of infringement . - The signer is the software author
According to the current 《 Copyright law 》, If there is no evidence to the contrary , The author is the one who signs his name on the work .《 Regulations on the protection of computer software 》 Also, , The copyright of computer software belongs to the software developer , If there is no proof of response , A natural person who signs on the software 、 Legal persons or other organizations are developers .
In addition to the signature , Authors can prove their rights in other ways . according to 《 Interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of civil disputes over copyright 》 Article 7 provides that ：“ The manuscript related to copyright provided by the party concerned 、 original script 、 Legal publications 、 Copyright registration certificate 、 Certificate issued by the certification authority 、 A contract to acquire rights, etc , Can be used as evidence .” among , The author can go to China Copyright Protection Center （ National copyright registration portal ） Submit an application for copyright registration , Get the registration certificate , Define the name of the work 、 Completion date 、 Date of publication 、 place 、 Authorship and other rights , And as a preliminary proof of ownership when claiming rights .
stay (2018) The people of Beijing end up 471 Judgment No , Digital paradise （ Beijing ） Network Technology Co., Ltd. v. grapefruit （ Beijing ） Technology Co., Ltd. and other disputes over infringement of computer software copyright （ hereinafter referred to as “ Digital paradise case ”） in , Developed by digital paradise HBuilder Three plug-ins in the software , Code input method function plug-in 、 Real machine running function plug-in 、 The plug-in has registered the copyright and obtained the registration certificate , The court recognized that digital paradise has the right to claim copyright .
- Github Whether the project owner is qualified as the subject of litigation
Github The project owner is required to allow any user to view and copy the contents of the warehouse . according to GitHub The rules of the website , After the open source software project person uploads the software source code to the website , If the page and warehouse are set to be displayed publicly , It means that the project owner grants non exclusive rights to each user 、 Global licensing , Allow them to pass GitHub Service usage 、 Display and execute content . except Github The default rule requires that , The project owner can also take the form of license , Further grant users more rights .
Github Rules and open source software features allow these users to fix open source software bug Or add functions , Feed back the modified source code to the project owner , Send to the project owner pull request, If the project owner agrees , The modified source code is officially merge To the source code of the open source software , Become a new version . These users are in Github The site is marked as a contributor .
stay （2019） guangdong 73 Know the beginning of the Republic 207 Judgment No , That is, Jining Luohe Network Technology Co., Ltd. sued Guangzhou Wanyou Network Technology Co., Ltd. for infringement of computer software copyright （ hereinafter referred to as “ Play friend case ”） in , The court held that there was no need for additional 32 Consent of contributors . The court held that the existing evidence could not be found VirtualApp It belongs to cooperative work , Even if it is a cooperative work , Because contributors are distributed all over the world , If the request must be authorized by all contributors to file a lawsuit , This will lead to the failure of open source software rights protection . The court found that the company infringed the copyright of the open source version of the software , At the same time, it is believed that if other contributors can claim the split compensation from Rohe .
Regarding this , The author of this article believes that there is some controversy ： What Luohe company claims is that it has obtained the registration certificate VirtualApp The copyright of the open source version has been infringed , It already includes 32 The code modified by the contributors. The controversial works in this case were published and modified through Github The website did , You can also get the consent of the contributors through the website or other means , There is no evidence to prove that the contributors have signed an agreement with the project owner to authorize the project owner to represent them in litigation , Nor is there any evidence that RoHS box has made efforts in this regard . The court held that the contributor was not the copyright owner , At the same time, the contributors are allowed to claim for split compensation , The author of this article thinks that there are certain contradictions . By identifying more than percent 90 The code of is provided by the project owner , Deny the contribution of contributors to the originality of open source software , Consider the project owner as a single copyright owner , Will greatly dampen the enthusiasm of contributors , It is not conducive to the development of open source community ecology . In practice , We found that large open source projects often sign contributor licensing agreements to solve licensing problems .
Two 、 GPL The legal nature of open source licenses
GNU General public license agreement , english GNU General Pubic License, Abbreviation for GNU GPL or GPL, Is one of the most popular software licenses in open source software .
GPL3.0 License as a Copyleft license , have “ Highly contagious ”.GPL3.0 The license allows open source software users to freely copy open source software 、 distribution 、 Modification and reissue , However, it is required that users should also use GPL3.0 License publishing corresponding source code . therefore , By using GPL3.0 license , Not only part of the copyright is granted to users , It also sets the obligation for users to open source under the same conditions .
China's jurisprudence tends to GPL3.0 The license is recognized as a conditional contract . In the playmate case , Guangzhou Intellectual Property Court adopted “ Offer theory ”, Think GPL3.0 A license is a contract between the software owner and the user , It is an atypical 、 A written form contract concluded by act , The release of open source software is considered as an offer , Users' use is deemed as a commitment , When used, the contract is established . First , according to 《 The civil code 》 And the relevant laws and regulations implemented earlier , It can be considered that open source software authors use GPL3.0 The act of license belongs to a kind of conditional civil legal act ; secondly , stay （2019） guangdong 03 At the beginning of the Republic of China 3928 Judgment No , That is, the case of Jining Luohe Network Technology Co., Ltd. suing Fujian Fengling Chuangjing Technology Co., Ltd. for infringing the copyright of computer software （ hereinafter referred to as “ Fengling case ”） in , The Shenzhen intermediate people's court held that ,GPL3.0 The content and form of the license have the characteristics of the contract .
3、 ... and 、 Consequences of license violation and tort compensation
- In violation of the GPL3.0 Consequences of the license
“ Fengling case ” The Chinese court of justice held that “GPL3.0 Conditions of use stipulated in the agreement （ Such as open source 、 Mark copyright information and modification information, etc ） It is a prerequisite for the Licensor to allow users to use freely , That is, the termination conditions attached to the agreement . Once the user violates the prerequisites for use , Will lead to GPL3.0 The agreement is automatically terminated between the authorizer and the user , The license obtained by the user based on the agreement shall terminate immediately .”
The author of this paper holds that , according to GPL3.0 The text of the license , Any attempt to distribute or modify the work in violation of this license is null and void , And the rights obtained by the user through the license will be automatically suspended ; But the license also stipulates that when the user no longer violates the license , This authorization can be restored . therefore , Although we can GPL3.0 The license is a conditional contract under Chinese law , But when the user violates the license prerequisites , The license contract is automatically suspended , Instead of direct termination leading to the elimination of contractual rights and obligations .
Whether or not the court considers that the license is terminated , Or a recoverable abort , In violation of the GPL3.0 After license , Users' copying of open source software 、 Use 、 Release 、 Modification and other acts will lose the source of rights , Constitute copyright infringement .
- Tort damages
according to 2010 Edition of 《 Copyright law 》, The amount of damages for copyright infringement shall be in accordance with ：1. Actual loss ;2. Determination of illegal income , Including reasonable expenses or compensation at the discretion of the court within 500000 yuan .
In China 2020 Years of 《 Copyright law 》 Revised , Among them, the compensation for copyright infringement damages has been greatly modified ：1. In the legal compensation, it is added that compensation can be given by referring to the royalties ;2. The mechanism of punitive damages is introduced , If the circumstances are serious, compensation may be made by reference to one to five times the amount of legal compensation ; The application of punitive damages shall comply with ： The infringer intentionally infringes upon the copyright 、 Serious circumstances , Actual loss 、 Illegal income and royalties are difficult to calculate ;3. The discretionary amount of compensation shall be increased from 500000 yuan to more than 500 yuan and less than 5million yuan .
As the facts of the case all occurred in 2020 Years ago , stay “ Digital paradise case ”,“ Play friend case ” And “ Fengling case ” in , The court ruled that the defendant should pay the plaintiff a total amount of 500000 yuan . Almost all these cases were decided according to the maximum amount of the law in force at that time . Predictably, , In the future, the compensation for copyright infringement of open source software will probably be judged according to fivemillion yuan , It may even make the defendant pay punitive damages that far exceed the illegal gains .
Four 、 Conclusion ：
Release of open source software 、 share 、 Modify and republish , Even commercial activities , Are inseparable from the cornerstone of the open source agreement .GPL3.0 Licenses are one of hundreds of open source agreements , It has been recognized and protected by Chinese courts . In the jurisprudence of Chinese courts , We have seen the chaotic behavior of well-known open source software project parties in using open source protocols , Open source software users infringe copyright , Violations of the open source agreement have also been punished . As a participant in open source software , Both developers and open source software users should pay attention to the choice of open source protocols 、 Use and so on .
Enterprise users of open source software should take the initiative to establish a compliance system and do a good job in open source compliance , Understand the rights and obligations of various open source agreements , Do well in advance 、 In - process and after - event review , Review the internal use of open source software , Avoid unintentional infringement of open source software copyright ; If infringement is found , Make up in time , Take a settlement with the author 、 Remedies such as purchasing a commercial version license , So as not to increase their own responsibilities , Pay a high price .
Reference material ：
[1] https://www.gnu.org/licenses/..., Date of visit ：2022 year 2 month 16 Japan
[2] https://zh.wikipedia.org/wiki... General public permit , Date of visit ：2022 year 2 month 16 Japan
[3] https://jxself.org/translatio..., Date of visit ：2022 year 2 month 16 Japan
[4] 《 The civil code of the people's Republic of China 》
[5] https://ipc.court.gov.cn/zh-c..., Date of visit ：2022 year 2 month 16 Japan
[6] An empirical study on the current situation of copyright infringement of open source software , Wumengchen , Qinghai University for Nationalities ,《 Great national policy 》2021 year 06 period
[7] Issued by the Ministry of industry and information technology “ the 14th Five-Year Plan ” Notice on the development plan of software and information technology service industry ,http://www.gov.cn/zhengce/zhe..., Date of visit ：2022 year 2 month 16 Japan
[8] Copyright cases GPL3.0 The agreement has “ Highly contagious ”！ Derivative works also need to follow the agreement to open their source code ,https://mp.weixin.qq.com/s/fd..., Date of visit ：2022 year 2 month 16 Japan
[9] Alibaba Open Source Individual CLA
