DeHeng Lawyer Won a Software Copyright Infringement Case Involving GPL, with Judgement Upheld by the Supreme People’s Court


Recently, the Supreme People’s Court made a second-instance judgment on a computer software copyright infringement case, rejecting the appeal of the alleged infringer and upholding the first-instance judgment made by the Suzhou Intermediate People’s Court. In this case, the copyrighted software was formed based on the secondary development of an open-source framework which is subject to the General Public License 2.0 of the Free Software Foundation (GPLv2), but the copyright holder did not make the source code publicly accessible after the secondary development. The alleged infringer raised a non-infringement defense on this ground. There is a lot of controversy over this issue at home and abroad. Although the issue has been involved in a small number of litigation cases in China in recent years, in most cases, the court has chosen to avoid talking about it due to the complexity of the dispute and the great foreseeable impact of the judgment. In this case, however, the Supreme People’s Court made a systematic and positive response to this issue for the first time, in the form of precedents in the reasoning part. 

After careful trial and argumentation, the Supreme People’s Court separated “whether the source code was made publicly accessible according to GPLv2” and “whether the copyright holder has the right to defend rights against infringement” as two relatively independent legal issues, and whether the alleged infringer infringed the rights holder’s software copyright was what this case should determine. According to this adjudication point of view, software developers who used the GPL open-source code to develop software but did not open-source their software code shall not be constrained by the GPL when they defend their rights against infringement, but they should bear the legal risks of claims filed by the “predecessor” rights-holder.

As the agent ad litem of Company A in the first and second instances of the civil litigation, Lyu Chengwei, partner of DeHeng’s Suzhou Office, fully collected evidence and participated in the litigation, overcame many difficulties and eventually won the case for the client.

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