Software: the dealer, even without a contract, is not infringing. – JDN

Is a software distributor infringer on the ground that sells the program to new customers without paying the bill for the editor? The Bordeaux Court of Appeal answered no to this question.

In a judgment
 March 10, 2016, the Bordeaux Court of Appeal rendered an interesting judgment in
 a case between two former contractual partners, who had forged
 relationships around an internet content management software.
 The software publisher had asked his co-contractor, site developer,
 to distribute the program by installing it to customers as part of a
 complete offer, on payment of a fee.

Some
 years after concluding the agreement, the relations between the parties were
 festered because the publisher had found that its software was used in
 some end users without being informed and without the fee
 correspondent has been paid. The dealer claimed he
 no longer using the software in question because he had developed his own
 content management solution.
 
 

The editor
 then initiated legal proceedings, particularly for infringement on the grounds that
 the distribution license he had given had been raped. he maintained
 also alleged that the software developed by his former partner
 was an infringement of its own program.

Stopping
 the Bordeaux Court of Appeal is rich two lessons
 particular.

  On the one hand, the judges indicate that fact,
 for the distributor, not having paid the commission due to the publisher’s
 not itself a software act of infringement, even though the software was
 installed at customers without the publisher has previously been informed.
 According to the judgment, the parties entered into a contract of mandate authorizing the
 distributor to install the software for its customers. The fact of not paying
 the corresponding fee simply made the debtor distributor
 vis-à-vis its partner.

This is what
 has stopped in these words: “in this type of contractual relationship
 and written default, unless expressly justified termination, retailers of
 the license had the right to install the software in
 the only condition to fulfill the invoice; the default is
 not in itself an act of infringement. “The editor will have any interest
 out contractually supervise the resale license terms and
 provide such an information obligation borne by the distributor,
 so that the grantor is regularly informed customers for whom the
 software is installed. Where information and commission regulation
 in time, then the contract could be terminated, so that the
 distributor would ipso facto penalties.

  On the other hand, the judgment is interesting because it
 statue on another application under the software infringement. The publisher
 argued that the program was copied by its former distributor, which
 offered its customers a new solution. IT expertise,
 performed during the procedure following seizure-counterfeiting operations,
 revealed that both programs share 18,200 lines of code, the
 75,000 lines of original software, representing, according to assessment
 the expert, between 200 and 500 (!) days of development. The expert had considered
 the functional core of the software had been replicated at 50%.

The Court
 therefore entered a conviction, even if it appeared that the software
 based in particular on parts of free software, which concerned
 apparently not the heart of the software. The editor in the same situation may
 But think before you initiate legal proceedings, which here lasted
 more than four years, since the infringer placed in meantime
 liquidation, was sentenced to only 15,000 euros in damages …
 and interests. The deterrent effect of convictions remains a vast construction site.