First GPL Case in China — or Is It?

The Beijing Intellectual Property Court recently handed down a decision relating to GPL.

See WYSIWYG note below on the facts.

The plaintiff Digital Heaven Internet Technology CO., LTD. (数字天堂网络技术) made publicly available its product HBuilder. One of the modules in HBuilder (“Aptana” released by Appcelerator, Inc., a third party) was licensed under GPL 3.0, and three modules developed by the plaintiff, “CIM plugin”, “ACR plugin”, and “HTML code drawing in real time plugin”, also included in HBuilder, had no other specific licensing terms.  Plaintiff alleged that defendant Pomelo Technology CO., LTD.(柚子科技有限公司) used some of its source code in a project called APICloud without permission.

The judges opined that the GPL license is enforceable in China, but that interpreting the copyleft conditions should be done on a case-by-case basis.  Asked to distinguish between mere “aggregation” and “derivative” works in GPL-3.0, the judges ruled that the relationship between the modules developed by the plaintiff to the GPL licensed Aptana is aggregation only, and thus the plaintiff’s modules need not be licensed under GPL 3.0. (Here, it is not clear whether the plaintiff or defendant alleged that plaintiff’s modules were under GPL 3.0, by inference.)

The judges ruled for the plaintiff and ordered damages of  “one million and 250 thousand” RMB, or approximately 165 thousand EU dollars, not including lawyers fees and court costs.  (See the decision for more information about the latter; the Google Translate feature does a decent job on this part of the decision.)  The judgement is appealable.

WYSIWYG: The decision is in Chinese, and the above is based on a description from secondary sources, which I will update if and when I receive a translation or learn to read Chinese, whichever comes sooner.  Actually, the facts are not clear to me at this time — particularly, it is not clear why the judges would rule that the Digital Heaven modules need not be under GPL, but state that the GPL is enforceable, because in that case the issue of enforceability does not seem ripe for decision.   The court awarded damages, but it is unclear to me whether these damages were for breach of GPL or simply copyright infringement.

Update: The defendant argued that the plaintiff’s software was under GPL. Note this may be a generally useful strategy to defend against copyright claims for proprietary software, though asking a court to interpret GPL as a matter of first impression may be an expensive defense to prosecute.  The damages were for copyright infringement, not violation of GPL.

Update: An English translation appears here.

Author: heatherjmeeker

Technology licensing lawyer, drummer

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