Author: Deng Chao 18611123013
Software was born to accompany computer hardware (mainframes) for professional use, has little independent value, and is not protected by copyright or patent laws. Later, with the emergence of microprocessors and personal computers, the user group of computers expanded rapidly, so software companies specializing in developing software were born to meet the increasingly diverse needs of users.
At this time, software has the meaning of independent sale, and the legal protection of software is also included under the framework of copyright law and patent law. In order to sell software, software companies need to prevent the software from being arbitrarily copied, so gradually they no longer provide source code, but only provide object code. Dissatisfied with the status quo, Richard Stallman started the free software movement, trying to restore software to its former state where source code was freely available. To achieve this, he wrote the GPL license. The main feature of the GPL license is that derivative code using the GPL code still needs to comply with the requirements of the GPL, that is, the source code is available.
Therefore, the GPL license is considered contagious.
In violation of the GPL license obligations, that is, the source code of the derivative code using the GPL code is not disclosed, the author of the GPL code can seek public relief in the court and sue the user of the GPL code. The act of the user of GPL code not disclosing the source code of the derived code simultaneously constitutes copyright infringement (the use of GPL code is unlicensed because it fails to comply with the GPL agreement) and a breach of contract (the legal nature of the GPL license in my country belongs to copyright license agreement).
From a practical point of view, a rational author would not choose the remedy path for breach of contract, because the remedy path for copyright infringement is superior to breach of contract in terms of the magnitude of the relief and the amount of relief means. In the relevant judgments at home and abroad, the authors unsurprisingly chose copyright infringement as the cause of action to sue.
But suppose that for various reasons, the author chooses the breach of contract as the cause of action to sue the user in the court of our country, and requires the user to continue to perform the contract, that is, to disclose the source code of the derived code, will the court support this claim? At present, the author has not heard that any court in the world has tried similar disputes, and because the court is a passive adjudication organ that "doesn't tell the truth", no judge has ever made a statement on this issue. In the following, a preliminary discussion on this issue is made based on the existing laws of our country (this article does not constitute a lawyer's opinion).
According to the provisions of the Civil Code of our country, the breach of contract should be borne by the breaching party mainly in three categories: continuing to perform, taking remedial measures and compensating for losses. If the author compels the user to disclose the source code, then it is necessary to ask the court to order the user to continue to perform the contract (GPL license). Although continued performance ranks first in the law, the most important remedy for contract breaches at home and abroad is still to compensate for losses, and the application of continued performance is very limited. my country's Civil Code also stipulates that in the case of "the subject matter of the debt is not suitable for compulsory performance or the performance cost is too high", the court shall not make a judgment to continue performance. In other words, non-monetary obligations (eg, open source code) are more likely to be unfulfillable or unfit to fulfill than there are no unfulfillable pecuniary obligations.
In practice, the court is also more cautious in deciding to "continue to perform the contract". Such judgments are prone to disputes, especially if the parties fail to perform the judgment on their own, and the other party applies to the enforcement tribunal of the court for enforcement, whether the judgment can be enforced and how to enforce it will become a challenge before the enforcement tribunal. a puzzle. For example, if the trial court really makes the above judgment, how the enforcement court determines which codes are infected by GPL and should be made public, and which ones are not, will easily cause problems in operation.
In addition, for the source code, if the user takes confidentiality measures for the derived code, the derived code is likely to become the user's trade secret. If the court enforces the disclosure of the source code of the derived code, there is also a conflict of infringing the user's own trade secret right.
In practice, the courts in our country mostly take the form of compensation for losses and other liabilities to make up for the losses of the parties, and rarely make judgments of continuing performance. Especially considering that judgments involving compulsory disclosure of the source code of one party are difficult to enforce, costly and ineffective. From the perspective of enforcement, the possibility of the court making such a judgment is not high.
To sum up, under the current judicial practice in my country, there is almost no need to worry about the situation that the user is sued by the author for violating GPL obligations and then forced to disclose the source code by the court judgment.
Further reading:
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