An Important CJEU Ruling That Will Soon Affect a Case of a Free License Violation?

The CJEU (Court of Justice of the European Union) has made an important ruling regarding noncompliance with the terms of a software license. This ruling also applies to the breach of a free software license. It will most likely be a key element in the ongoing litigation between Orange and Entr'ouvert, the company editing the free library Lasso.

In its ruling of December 18, 2019, the CJEU specifies that the violation of a software license constitutes an infringement of copyright, and is therefore not subject to contractual liability. The ruling's conclusion:

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights and Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the breach of a clause in a licence agreement for a computer program relating to the intellectual property rights of the owner of the copyright of that program falls within the concept of ‘infringement of intellectual property rights’, within the meaning of Directive 2004/48, and that, therefore, that owner must be able to benefit from the guarantees provided for by that directive, regardless of the liability regime applicable under national law.

This ruling applies to all software licenses, including free licenses for software.

Entr'ouvert (a free software company) sued Orange in 2011 for infringement of copyright and failure to comply with the terms of the free license GNU GPL version 2, under which the free library Lasso1 had been published. In its ruling of June 21, 2019, the Paris High Court (Tribunal de Grande Instance) based its decision solely on contractual liability and dismissed Entr'ouvert's claim.

The CJEU considers that the software license violation constitutes an infringement of copyright, and is therefore not subject to contractual liability. This ruling will most probably be at the heart of the appeal hearing.

• 1. To learn more about Lasso, visit Entr'ouvert's Web site.