The verdict reassures software developers
The Intellectual Property Tribunal of the Supreme People's Court has been praised for its balanced protection of the construction of the software open source community and the rights and interests of software developers.
The Supreme People's Court's proper handling of this case has reasonably defined the boundaries of the rights of secondary developers of open source licensed software such as GPLV2 (Open Source Agreement - Reporter's Note), which has set a benchmark for China's ongoing construction of an open source community with Chinese characteristics, and is an important milestone in China's software development industry, which is of great significance. ”
On November 22, 2023, Liu Jiming, general manager of a network technology company in Suzhou, made a special trip to the Intellectual Property Tribunal of the Supreme People's Court and presented a pennant and the above-mentioned letter of thanks (excerpt) to the collegial panel team.
Your verdict has boosted the confidence of software R&D enterprises, and I truly feel in myself that the people's court 'strives to make the people feel fairness and justice in every judicial case'. Liu Jiming held the judge's hand and expressed his gratitude excitedly.
Who leaked the R&D secrets?
Suzhou network technology is a national key high-tech enterprises, since 2009, the company has invested about 25.89 million yuan in research and development, completed a gateway product system software named "officeten", and in 2013 obtained the National Copyright Administration "officeten1800 system software (v1.).8)". The software is mostly aimed at large domestic communication operators such as China Mobile and China Telecom, and has broad market prospects.
Until one day, they found out that a fake Li Kui appeared on the market.
In January 2016, a network technology company in Suzhou purchased an enterprise gateway produced by a communication technology company in Zhejiang from a distributor of communication technology in Zhejiang.
Who leaked the R&D secrets? An in-depth investigation by a network technology company in Suzhou found that a communication technology company in Zhejiang contacted Liu and Wu after they resigned from a network technology company in Suzhou and hired them as their employees.
Mr. Liu and Mr. Wu were both employees of a network technology company in Suzhou, and worked as hardware engineers and embedded engineers in a network technology company in Suzhou respectively. During their employment, they were important members of the software development project team involved in the case, and both had normal access to the technical information involved in the software development.
An in-depth investigation of a network technology in Suzhou found that a communication technology company in Zhejiang indirectly set up an affiliated network company as a "firewall", and Liu and Wu were nominally employed by an affiliated network company, and in essence, they directly developed gateway software for a communication technology company in Zhejiang. They illegally logged in to the server of a network technology *** in Suzhou, discovered the source of the software involved in the case, and enabled the affiliated network company to complete the accused software that was highly similar to the software involved in the case within a few months; The sued software is the embedded software specially used in the gateway products produced by a communication technology company in Zhejiang, and a communication technology company in Zhejiang publicly sells the corresponding gateway products in the market, and directly competes with a network technology company in Suzhou in various bidding competitions, snatching customers who originally cooperated with a network technology company in Suzhou, and making a lot of profits.
In July 2016, a network technology company in Suzhou reported to the Suzhou Municipal Public Security Bureau on suspicion of copyright infringement by Wu and a communication technology company in Zhejiang. According to the appraisal agency entrusted by the public security organ, the same rate of non-open source ** of the 1800-c version of the accused software and the software involved in the case is as high as 902%, which is substantially similar.
Subsequently, a network technology company in Suzhou filed a lawsuit with the Intermediate People's Court of Suzhou City, Jiangsu Province, on the grounds that a communication technology in Zhejiang Province copied, modified, and distributed the copyrighted software involved in the case without permission.
A communication technology company in Zhejiang Province and an affiliated network company raised a non-infringement defense based on the GPLV2 agreement. The Suzhou Intermediate People's Court held that the non-infringement defense could not be established. The Suzhou Intermediate People's Court finally found that the infringement was established, and accordingly ordered a communication technology company in Zhejiang to stop the infringement and compensate a network technology company in Suzhou for economic losses and reasonable expenses.
A communication technology company in Zhejiang and its affiliated network companies were dissatisfied with the judgment and appealed to the Supreme People's Court.
Is the non-infringement defense established?
Is the non-infringement defense raised by the accused infringer such as a communication technology *** in Zhejiang based on the GPLV2 agreement established? If the software developer violates the GPLv2 protocol to a certain extent, does it necessarily not enjoy the copyright of the newly developed software? In the second instance, this issue was the main point of contention.
According to reports, in the common mode of operation of the software industry, software development generally involves the problem of open source protocols, and programmers want to find relevant modules to achieve what functions they want to achieve when developing software. And this module**, many of which are open source**, are subject to open source protocols.
And what is an open source license?
The open source license involved in this case is the General Public License Version 2 (GPLv2 license). The GPLv2 license is published by the Free Software Association, which is a license for the use of software written by some veteran foreign programmers, and according to its terms, other derivative software developed on the basis of the software subject to the GPLv2 license is also subject to the license. Therefore, while developers can freely**, copy, and modify programs subject to this license, new programs developed as a result must remain open source according to the terms of the license.
In the process of searching for this agreement, the judge in charge of the case, Kong Liming, found that its official valid text was only in English, and although there were different versions of Chinese translations on the Internet, the translations of some key provisions were not accurate. What is the real meaning of this agreement? He decided to translate himself. The agreement is written in the way that Anglo-American contract documents are drafted, and it is full of algorithms and logical relationships. Fortunately, Judge Kong Liming has experience in writing and negotiating English contracts for foreign-related projects, and is also a professional in international law, so he finally translated the English version of this cloud mountain fog cover into Chinese. He also combed through all the hundreds of questions and answers in the Q&A section on the official website of the agreement. After a lot of hard work, Kong Liming has a deep understanding of the true connotation of open source licenses, the views of open source organizations on various legal issues, and the situation of related cases in the United States and Europe. He made a presentation at the Professional Judges Conference.
Judge Yuan Xiaoshuang, the presiding judge of the case, told reporters that after discussion at the meeting of professional judges, it was believed that the open source agreement is a complex and difficult issue that is deeply intertwined with law and technology that is of great concern to the global software industry, and that such disputes need to be handled prudently and properly.
Zhou Xiang, vice president of the Intellectual Property Court, told reporters that for how the court will hear cases involving open source software intellectual property rights in the future, through expert discussions and extensive listening to the opinions of all parties, the thinking has become clearer. In handling such cases, it is necessary to seek a balance of interests between strengthening copyright protection, respecting the autonomy of developers, and supporting and encouraging the construction of open source communities, and adhere to the organic unity of political, social, and legal effects.
Combined with the above research results, the collegial panel finally reached a unanimous view.
Is the copyright of the software involved in the case protected?
Specific to this case, the "Officeten" software developed by a network technology company in Suzhou is a derivative software formed by secondary development based on OpenWrt system software (OpenWrt system software is open source software, and the applicable license agreement is GPLv2 protocol), which can be divided into two parts: one part is the underlying system of the software involved in the case (hereinafter referred to as the underlying system software) formed by adding, deleting, modifying and adjusting the corresponding source ** of the OpenWrt system software. The other part is the upper-level functional software formed by the new source ** corresponding to the specific functions of the software involved in the case (hereinafter referred to as the upper-level functional software).
A network technology in Suzhou claimed that it had established an isolation layer between the underlying system software and the upper-level functional software by using technical means such as sockets and command lines, and that the communication between the two did not involve internal data structure information, thus making the upper-level functional software constitute an "independent and separate" program under the GPLv2 protocol.
In the judgment of the second instance, the Intellectual Property Tribunal of the Supreme Court held that the gateway product system software named "officeten" invested and developed by a network technology company in Suzhou invested a lot of costs, and the software involved in the case was original and could be reproduced, which constituted a work under the Copyright Law and should be protected in accordance with the law. Without the permission of a network technology in Suzhou, others are not allowed to copy, modify, or distribute the software involved in the case, otherwise it will constitute an illegal act of infringing the copyright of the software involved in the case.
Based on the evidence in the case, the collegial panel determined that the affiliated network company copied and modified the source of the software involved in the case of a network technology in Suzhou in the process of developing the accused software; It was determined that a communication technology company in Zhejiang had carried out the act of selling the accused software. It was determined that the reproduction, modification, and distribution were all without the permission of a network technology company in Suzhou, which infringed the copyright of the software involved in the case.
The second-instance judgment gave a clear and positive response to the issues disputed by both parties, such as the boundary between the copyright rights of open source software and software developers, and the legal relationship between the violation of the open source software agreement and the infringement of software copyrights: "In an infringement dispute where the software has not been open-sourced, the software copyright owner believes that its software is not bound by the GPLv2 agreement, and the accused infringer raises a non-infringement defense based on the GPLv2 agreement, Whether the software developer violates the GPLv2 agreement and whether he or she enjoys the software copyright are two relatively independent legal issues, and the two should not be confused, so as not to unreasonably deprive or restrict the copyright enjoyed by the software developer based on his original contributions. "However, it should be pointed out that the final determination in this case that the alleged act constitutes infringement and supports part of the claims of the software rights holder involved in the case does not indicate that the right holder can be exempted from liability for breach of contract and/or infringement in the future in the potential breach of contract and/or infringement lawsuit." ”
Lawyer Lv Chengwei, a network technology professional in Suzhou and a partner of Beijing Deheng (Suzhou) Law Firm, told reporters that after the second-instance judgment, the accused infringer fulfilled all the compensation and published an apology statement in the enforcement stage, and the legitimate interests of the right holder were fully protected. The rights holder sincerely thanked the Supreme People's Court for its fair judgment and paid high respect to the professionalism and professionalism of the judges of the Intellectual Property Court of the Supreme People's Court.
What is the value of the second-instance judgment?
As a difficult and complex case, the biggest controversy in this case is that the computer software in question that the plaintiff claims to protect is developed based on open source software. Complex issues involving whether the plaintiff's computer software should be open source under the open source license agreement, whether the plaintiff's failure to open source the open source under the open source agreement violates the agreement, and whether the defendant's use of the software without the plaintiff's permission is infringing. Wang Qian, a professor at East China University of Political Science and Law, said in an exclusive interview with this reporter that the judgment of this case makes a reasonable distinction between whether the plaintiff's behavior violates the open source agreement or even constitutes infringement and whether the defendant's behavior infringes the plaintiff's copyright. What is particularly valuable is that it was not interfered with by the seemingly complex factor of "open source protocol", but looked at the essence through the phenomenon, firmly grasped the basic principles of the Copyright Law, and made a correct judgment that conformed to the provisions of the Copyright Law and the spirit of the legislation. The relationship between open source software and new software independently developed on the basis of open source software is similar to the relationship between ** and films shot on the basis of **, that is, the relationship between the original work and the derivative work. Even if the creation and subsequent exploitation of a derivative work is without the permission of the copyright owner of the original work or exceeds the scope of the license, thus constituting a breach of contract and infringement of the copyright of the original work, it does not affect the protection of the derivative work (infringing derivative work) under the copyright law, and the unauthorized use of the derivative work by others still constitutes an infringement of the copyright of the derivative work. "The judgment of this case follows the basic legal principles and clarifies the basic rules for the trial of future cases involving open source software copyright infringement, which is of strong guiding significance and is commendable. ”
Open source agreements are a common legal concern in the computer software development industry around the world. The adjudication rules established by the Supreme People's Court in this case have created a relatively relaxed legal environment for the healthy and stable development of China's computer industry. Especially for some small and medium-sized software development enterprises, they can enjoy the corresponding computer software copyright in accordance with China's copyright law according to their original contributions made in the process of secondary development. Li Hongbin, deputy to the National People's Congress and vice president of Nanjing Foreign Chinese School, said that this case has given these small and medium-sized enterprises a reassurance, which will help enhance their business confidence and further increase investment in research and development costs. On the other hand, this case also confirms the legal effect of GPLV2, an international legal text, and does not deny the autonomy of the parties concerned. This judicial concept is fully in line with China's policy orientation of encouraging the construction of computer software open source communities, and well balances the interests of the construction of software open source communities and the protection of the rights and interests of software developers. ”
*: People's Court Daily.
Reporter: Wang Lili.