[gpm]

Rather it seems like they might have to sue you for breach of contract, instead of breach of copyright.

Per the article the court didn't rule that licenses were unenforceable, they ruled that they were enforceable via contract law and that the plaintiffs were incorrectly attempting to enforce them via copyright law.

[black_puppydog]

But as the article also points out, the different ways of enforcement typically result in drastically different levels of compensation (read: incentive) with contract law being judged on missed profits, which is often zero for FOSS libraries.

[belorn]

During the piratebay case in Sweden, products that has never been for sale and would never be for sale were discussed in terms of missed profits. The argument that the Swedish courts accepted was a hypothetical sale of said product using the closest similar product, with an added multiplier for the fact that the product would never be allowed to be sold in the first place.

It is hard to know if the french courts would accept a similar argument, but as the author I would definitive argue it. Depending on what the FOSS library do and what a similar product would cost if acquired through legal purchase, the number could easy reach into millions of "lost profits".

[ectopod]

But can you enforce click-through licenses in France?

If Entr'Ouvert had chosen the alternative route and sued as a contract violation, then Orange would have claimed that they never accepted the contract and the matter could only be decided by the copyright court. But (according to the article) you only get one shot at the litigation. So I guess you can never enforce the GPL in France. Maybe?

[mcguire]

The point of the GPL is that, if you don't accept the license, then you don't have any rights to distribute the code and doing so would be a copyright violation. It's not a EULA that has extra restrictions on what you can do.

[tsimionescu]

I don't think taking and distributing a library is comparable to a click-through license. There's a relatively simple case to be made that you could have only copied the code if you had accepted the contract.

Not that Orange wouldn't have tried to claim what you are saying, but as a layman, the case for contract law sounds stronger than copyright infringement.

[aidenn0]

I'm totally unfamiliar with French Civil law; can contract law ever be punishable with any prison time? In the US copyright law is (at least in theory) a criminal offense, punishable with prison time, but my understanding is that breech of contract is not.

The implications, if true, would be that if you license something in France, and start selling copies in flagrant violation of the license, you cannot be threatened with criminal charges?

[dragonwriter]

> I'm totally unfamiliar with French Civil law; can contract law ever be punishable with any prison time?

Private parties in most countries can’t prosecute criminal charges anyhow, and limitations on the mechanisms of pursuing civil [0] law claims by private parties don't generally have any effect on criminal prosecution by the State, since even with the same common name for an area of law, the precise definitions in criminal law are different than civil law.

[0] used here in contradistinction to “criminal” as an area of law, not to “Common” as a system of law, since both distinctions have been relevant in the thread.