En Allemagne, un arrêt intéressant relatif à la licence GNU GPL version 3 rendu au mois de juillet pour la cour d’appel de Halle (Saxe-Anhalt).
Les conditions de résiliation (section 8) — si elles offrent « une seconde chance » au licencié qui remédie à ses manquements sous 30 jours (sec. 8, 3e alinéa) — n’empêchent pas l’ayant-droit d’obtenir la réparation du préjudice résultant des manquements du licencié.
You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License (including any patent licenses granted under the third paragraph of section 11).
However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.
Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice.
Termination of your rights under this section does not terminate the licenses of parties who have received copies or rights from you under this License. If your rights have been terminated and not permanently reinstated, you do not qualify to receive new licenses for the same material under section 10.
Extrait de l’arrêt (traduit par JBB) :
Contrary to the Defendant’s opinion, section 8 para. 3 of the GPL version 3 of 29 June 2007 does not preclude the asserted claim. This is the case because even though the provision grants reinstatement of the licence to the violator on the condition that the violation is remedied within 30 days of receipt of a corresponding notice, as the Chamber would expect in light of Mr. affidavit. However, this granting of the right to continue using the licence cannot be interpreted to mean that the licensor at the same time had the intention of waiving his right to demand a cease and desist declaration with a penalty clause from the (first time) violator. Despite the fact that the licensor thereby affords the violator a “second chance” to use the licence, it does, on the other hand, have an interest worth protecting in the lasting prevention of further infringements after the first infringement has occurred. If the interpretation of the Defendant was correct, this would in effect be tantamount to an invitation to every user of the licence to violate the terms of the licence in the secure knowledge that he would only need to reckon with having to submit a cease and desist declaration with a penalty clause or a cease and desist order issued by a court upon discovery of the second case of infringement. Based upon an equitable interpretation of section 8 para. 3 GPL version 3 of 29 June 2007, neither the pre-trial warning letter to the Defendant nor the assertion of the claim for injunctive relief through the courts appear to be meaningless or in bad faith.