Wake-up call for open source users: French court awards damages for GPL violations in Entr’Ouvert v. Orange

The Court of Appeal of Paris has awarded software company Entr’Ouvert over €900,000 in its suit against Orange S.A. alleging violations of version 2.0 of the GNU General Public License (GPL), including €500,000 for compensatory damages, €150,000 for moral damages, and €150,000 for disgorgement of profits made by Orange.

The award, announced on February 14, is a landmark ruling for the open source community and should serve as a wake-up call for users of copyleft open source software.

A complicated history

The case began in 2005. Orange (formerly France Telecom), through its subsidiary, bid on and won a contract with the French government to develop the “Mon Service Public” Internet portal, which permitted French citizens to conduct various administrative activities online. The portal, which debuted in 2009 and operated until 2016, incorporated a modified version of Entr’Ouvert’s LASSO single sign-on library, which Entr’Ouvert made available under the terms of either the GPL or a commercial software license. Prior to incorporating LASSO into Mon Service Public, Orange inquired about, but did not ultimately obtain, a commercial license from Entr’Ouvert.

Entr’Ouvert sued Orange in 2011, alleging that Orange violated the GPL when it made LASSO available as part of the Mon Service Public portal. Specifically, Entr’Ouvert alleged that Orange failed to provide notice of its modifications and failed to provide (or failed to make an offer to provide) the LASSO source code as required by the GPL. Importantly, Entr’Ouvert brought its claims in the Tribunal de Grande Instance as an intellectual property counterfeiting claim (analogous to a US intellectual property infringement claim), which is a tort claim.

In 2019, the Tribunal de Grande Instance dismissed the case because the alleged infringement resulted from a breach of the GPL; Entr’Ouvert’s claims were contract claims rather than tort claims. The dismissal was affirmed by the Court of Appeal in 2021, though Orange was ordered to pay Entr’Ouvert €150,000 for parasitism.

After a further appeal to the Court de Cassation, the Court of Appeal again heard the case and in February this year held that Orange committed acts of counterfeiting through its modification, use, and distribution of LASSO; failed to include required notices and offers to provide source code in violation of Articles 2, 3, 4, and 10 of the GPL; and violated Entr’Ouvert’s moral rights in the work. Entr’Ouvert was awarded €500,000 for compensatory damages, €150,000 for moral damages, €150,000 for disgorgement of profits made by Orange, and €60,000 to cover Entr’Ouvert’s legal costs.

Key takeaways

This case is significant for two important reasons. First, the Court of Appeals held that Orange’s violations of the GPL constituted counterfeiting, or infringement, of Entr’Ouvert’s intellectual property rights. Second, the court awarded substantial damages to Entr’Ouvert as a result of that infringement.

The ruling highlights the risk of non-compliance with open source software licenses – particularly when those licenses are copyleft licenses. We advise organizations that use open source software to take the following precautions:

• Understand open source license obligations and ensure compliance: Before incorporating any open source code into their products, it is important for organizations to understand the requirements of the licenses that govern the use of such software. The GPL is not the only open source licenses that require the provision of notices and source code, so organizations are urged to understand the licenses to ensure that their use of open source software does not trigger the obligation to disclose their source code of their proprietary software to end users.
• Exercise additional diligence when using dual-licensed software: The majority of the award against Orange was intended to compensate Entr’Ouvert for the amount Entr’Ouvert it might have been paid if Orange had entered into a commercial license to use LASSO. Users of open source software must be aware of the potential for such additional damages resulting from their violation of open source licenses when that software is available under a commercial license, which may be used as a basis for calculating a damages award.

Next steps

DLA Piper’s Technology Transactions and Commercial Contracts practice includes several experienced lawyers to help you comply with open source licenses, understand the risks and benefits of utilizing open source software, and conduct any necessary due diligence to identify open source issues.

For further information or if you have any questions, please contact either of the authors.