Or it's French courts making a ruling which is compatible with French law and incompatible with an American's understanding of what French law should be. You can read about it here [i].
The point is that behavior contrary to the terms of a license is considered a contract breach and not a copyright violation, so Orange didn't violate copyright. It's yet to be determined whether they violated the terms of a contract (the court in question can't make that determination.)
So if you're aware of the specifics here, help me out with the question I asked.
How can you possibly have a valid copyright for software in French law if all license terms are considered contract breaches?
From your own link...
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>>The legal position was resolved by the transposition of May 14, 1991 EU Directive into French law: computer programs and any associated preparatory works qualify for copyright protection in France as in other European Union jurisdictions.
Once a work has been published, the author cannot prevent:
1. Private family performances.
2. Copies for the private and personal use of the copier. This provision does not apply to works of art, computer programs (where a single safeguard copy is allowed, Art. L122-6-1-II) and databases.
3. In cases where the name of the author and the source are clearly indicated,
a) Analyses and short citations justified by the critical, polemical, scientific or pedagogical nature of the work.
b) Press reviews.
c) Diffusion of public speeches as current news.
d) Reproductions of works of art in catalogues for auctions in France (subject to regulatory restrictions).
4. Parody, pastiche and caricature, "taking into account the usage of the genre".
5. Acts necessary to access a database within the limits of the agreed use.
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But how can this be true? Orange clearly does not fall into any of the excluded uses, and I must release my software with some sort of licensing statement (even the lack of a statement is a statement in my jurisdiction). But it appears this ruling would mean all breaches could only ever be contract breaches.
So again, how do I have copyright for software in France? I'm genuinely trying to understand if there's some nuance here that I'm missing.
> How can you possibly have a valid copyright for software in French law if all license terms are considered contract breaches?
Perhaps you are confusing the copyright with the licence.
The copyright adheres strictly to the author. He can sell it, in which case he sells the right to licence and enforce.
If he licences, then he retains the copyright, and grants the licensee specific rights in exchange for specific actions. That's a licence agreement; to my mind, the word "agreement" signifies a contract. I find it a stretch to interpret a licence violation as a copyright violation.
The legal system of France lays out two different penalties for different behaviors
1. Violation of copyright/IP, which is punished based on how much gain the counterfeiter makes.
2. Violation of contract, which is punished solely on how much money the party violating the contract caused the other party to lose.
So my take is still pretty firm that you have no copyright for software in France - Or (and maybe we're getting closer here) to restate: Copyright for software in France is not equal to Copyright for other intellectual property, such as art/song/performance. Since this ruling would prohibit anyone from ever getting the much more meaningful ruling that the other party is a counterfeiter, not simply a party in breach of contract, if the IP in discussion is software.
In which case we could call that copyright, but it feels like a misnomer.
That’s not quite right. As I understand it (IANAL etc), the same rules apply to art/song/performance as to software. The key difference is whether the misbehaviour is carried out by a licensee. Once you license a creative work to someone, whether art or software, breaches are violations of the contact, not the copyright. In contrast, if the copyright holder hasn’t granted a license, then it’s a copyright violation, not a contract breach.
So software does have copyright in France, but it can’t be used for copyleft licenses in the same way as in the US. That doesn’t mean it isn’t copyright.
You say you must release your software under a license. But you don’t have to make everyone in the world a potential licensee. No one is compelled to grant universal license to distribute their software. They can just decline to do so and rely on copyright laws.
You’re defining copyright narrowly as “that which allows open source copyleft licenses like the GPL to work.” But that’s based on a US-centric understanding of copyright that simply doesn’t apply in France.
And it’s not surprising. The GPL is a hack of the copyright system. It uses copyright to do something it wasn’t originally intended to do and is only capable of doing because of the peculiarities of the US (and other) legal systems. Hacks often don’t work outside of their original context.
The point is that behavior contrary to the terms of a license is considered a contract breach and not a copyright violation, so Orange didn't violate copyright. It's yet to be determined whether they violated the terms of a contract (the court in question can't make that determination.)
[i]: https://en.wikipedia.org/wiki/Copyright_law_of_France