Entr’ouvert v. Orange is a French copyright case about Lasso, a single sign-on library that the cooperative Entr’ouvert distributes under the GNU General Public License version 2 (GPLv2) or a commercial licence. In 2022 the Cour de cassation held that, where the author’s rights are infringed, the author “est recevable à agir en contrefaçon” (may bring an infringement action) even though the infringement results from breach of a licence, because a contract claim would not give the protections of the EU Enforcement Directive.[1] On remand, the Paris Court of Appeal held on 2024-02-14 that Orange and Orange Business Services infringed Lasso by breaching articles 2, 3, 4 and 10 of the GPLv2 and Entr’ouvert’s moral right, and ordered them to pay EUR 800,000 in damages.[2]
Background
In a tender launched at the end of 2005 by the French State’s e-government agency (ADAE, later part of the DGME), Orange won the lot for an identity management platform for the portal “Mon service public”, which ran from early 2009 to 2016-07-01. Its platform, IDMP, integrated Lasso in its GPLv2 version.[2] Before the tender, Orange’s predecessor France Télécom had sought commercial proposals and training from Entr’ouvert, including a January 2005 proposal referring to a licence to use Lasso “en environnement propriétaire non compatible avec la licence GNU GPL”.[2]
The dispute
Considering that Orange’s use did not comply with the licence, Entr’ouvert carried out a saisie-contrefaçon (infringement seizure) at Orange’s premises in April 2011 and on 2011-04-29 sued for copyright infringement and parasitism.[2] In 2019 the Paris tribunal de grande instance held Entr’ouvert’s infringement claim inadmissible, and in 2021 the Paris Court of Appeal confirmed that point while awarding EUR 150,000 for parasitism.[2] The 2021 judgment reasoned that where an infringement results from breach of a contract, only a contractual action is admissible under the French rule against combining contractual and tortious liability.[1]
Decision or outcome
The Cour de cassation (first civil chamber, published in the Bulletin) upheld the parasitism award but quashed the ruling that the infringement action was inadmissible. It relied on the CJEU’s judgment of 2019-12-18 in IT Development (C-666/18), under which breach of a clause of a software licence concerning the copyright holder’s intellectual property rights is an “atteinte aux droits de propriété intellectuelle” within Directive 2004/48. Because a contractual action under French law does not give the rights holder the evidence-gathering and damages guarantees of articles 7 and 13 of that directive, the holder may sue in contrefaçon.[1]
On remand, the Paris Court of Appeal (Pôle 5, Chambre 1) found Lasso original and protected. It held that Orange had “distributed” Lasso within the meaning of the licence by selling, delivering and transferring to a third party, the State, the IDMP platform based on modified GPL-licensed Lasso, and that Orange did not supply the full Lasso source code.[2] It also found an infringement of the moral right of paternity because IDMP was distributed only under the name “France Telecom”.[2] It ordered Orange and Orange Business Services, in solidum, to pay EUR 500,000 for the negative economic consequences, EUR 150,000 for moral damage and EUR 150,000 for the profits they made, together with EUR 60,000 under article 700 of the Code of Civil Procedure; it refused publication of the decision.[2]
Significance for software licensing and SAM practice
The case settles, for French law, that a software licensor may treat breach of licence conditions touching its copyright as contrefaçon rather than only as breach of contract, with the associated seizure procedures and damages heads (economic loss, infringer’s profits and moral damage).[1][2] It also shows a court treating delivery of a system to a client under a public contract as distribution of the GPL component inside it.[2] The underlying conditions are described in GNU GPL, LGPL and AGPL obligations.
Lessons learned
- Licence breach can be infringement. Following IT Development, the Cour de cassation allowed an infringement action for breach of a software licence clause, because contract remedies would not give the protections of Directive 2004/48.[1]
- Delivering to a client is distribution. The Court of Appeal held that selling and delivering IDMP to the State distributed Lasso, so the GPLv2 source code and licensing conditions applied.[2]
- Attribution matters. Distributing the platform only under Orange’s former name, without naming Entr’ouvert, was held to infringe the author’s moral right and supported a separate award for moral damage.[2]