Chinese Law Perspective Study on the Legal Issues Related to the

Violation of Open Source Licenses: Taking GPL as An Example

Ziyi Wang

Intellectual Property School, East China University of Political Science and Law, Shanghai, China

Keywords: GPL Open Source Licenses, Breach of Contract and Infringement, Competing Open Source Defences.

Abstract: Open-source software has emerged as a pivotal force driving technological innovation in the country. Its legal

foundation, the open-source license, is essential for ensuring the unimpeded circulation of software and pro-

tecting developers' rights. The prevalent use of GPL licenses, coupled with their highly infectious nature, has

given rise to legal controversies. In China's judicial practice, GPL violations often result in concurrent tort

and contract liabilities. While infringement claims better safeguard rights holders' interests, punitive damages

should be imposed judiciously. This article highlights that in GPL-licensed open-source software infringe-

ment disputes, the software's originality should not be disregarded due to illegal creation processes. Through

case analysis, legal doctrine examination, and comparative research, the article aims to bridge domestic re-

search gaps, integrate Chinese law with international experience, and propose improvements to balance cre-

ators' interests and foster the healthy development of open-source software.

1 INTRODUCTION

Open source software is a term used to describe

software that is open source. It is software that gives

users the right to copy, study, modify, and distribute

the software and makes the source code available for

free use (open source) with only minor other

restrictions. Linux and Firefox are examples of such

software. Open source software has its roots in the

code-sharing culture of the 1970s, where

commercialization and piracy led to stronger

protection under intellectual property laws, the launch

of the GNU ("GNU's Not Unix") project in 1983, and

the creation of the Free Software Foundation "FSF")

and the birth of the GPL (GNU General Public

License, abbreviated as "GPL License").

Subsequently, the BSD Unix system and the Linux

kernel further promoted the development of today's

open-source software has become a key driver of

technological innovation. With the popularity of

open-source technology in various industries,

international mainstream open-source licenses such

as Apache 2.0, MIT, BSD, GPL, etc. have been

widely used in China, but they have not been given

much attention in the legal field. The Outline of the

14th Five-Year Plan and 2035 Vision of the National

Economic and Social Development of the People's

Republic of China and the Outline of the Construction

of a Powerful Intellectual Property Rights Country

(2021-2035) all point out that "the intellectual

property rights of open source should be perfected

and the legal system should be improved", and at the

time the same, more and more copyright infringement

cases related to open source software have appeared

in China, including the case of, in which there are

more and more cases of copyright infringement. At

the same time, along with more and more cases of

appearing in China, the intellectual property issues

embedded therein have gradually surfaced and need

to be solved.

It is generally accepted in China that open-source

software is protected by copyright law and that GPL

licenses are contractual in nature. Therefore, in

judicial practice, illegal open source licenses may

involve two legal issues: one is the existence of open

source software developers and the licensee, the

licensee violated the open source license and arising

from the infringement of legal liability and

contractual legal liability of the competing issues; the

second is the open source software derivatives of the

infringement of copyright in the lawsuit whether to

violate the terms of the open source license to defend

the issue, for example, in the case of Nanjing Future

Co. v. Ltd. v. Zhejiang Yibang Communication

Technology Co., Ltd. and other disputes over

infringement of computer software copyright, while

the court of second instance held that the defendant's

158

Wang, Z.

Chinese Law Perspective Study on the Legal Issues Related to the Violation of Open Source Licenses: Taking GPL as An Example.

DOI: 10.5220/0013975200004912

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Innovative Education and Social Development (IESD 2025), pages 158-165

ISBN: 978-989-758-779-5

non-infringement defense based on the GPL 2.0 could

not be upheld.

This paper takes GPL open source license as an

example to study its legal nature, legal liability and

defense in judicial practice and other related legal

issues of open source license in China, so as to make

the use of open source software more standardized,

and to make China's legislation on open source

software and judicial practice more sound in response

to promote the innovative development of open

source software and the improvement of the open

source software system in China.

2 VIOLATIONS OF

OPEN-SOURCE LICENSES ARE

MORE LIABLE TO

INFRINGEMENT OF THE LAW

Open source software licenses have evolved from

commercial and free software, allowing developers to

make source code publicly available for others to use

while maintaining intellectual property rights over the

source code. At the heart of this licensing mechanism

is the open-source license, which is granted by the

author and allows the user to perform certain acts that

would otherwise make it illegal to use the source code

of another person's software without

permission.(Zhao,2023)Open source licenses are not

only the legal basis of open source software, but also

the key to ensuring the free flow of software and

protecting the rights of developers. In this paper, we

will focus on the GPL license, which is different from

the relatively loose open-source licenses such as MIT,

BSD, Apache, etc. GPL license is one of the most

restrictive open source licenses, which is "highly

contagious" and must be open source. Anyone who

modifies or uses the software code under GPL

license, the modified version or derivative must be

open source, and when redistributing the source code,

the modified version or derivative must be open

source, and when redistributing the source code, the

modified version or derivative Anyone who

modifies or uses software code under a GPL license

must make the modified version or derivatives open

source, and redistribute the source code under a GPL

license without charging any license fees.

2.1 Competing Tort and Contractual

Liabilities for Breach of GPL

License

2.1.1 Legal Nature of The GPL License

In United States law, property law distinguishes

between a "contractual license" (Contractual license)

and a "unilateral license" (Bare license). A

"Contractual license" is an agreement between two

parties through offer, promise, and consideration, and

is regulated by contract law; a "Bare license" does not

require the consent of both parties, and the licensor

permits the licensee to do something not permitted by

law and is regulated by that law (in the case of the

GPL, by copyright law). In the case of GPL, the law

(i.e., copyright law) governs. Thus, in the United

States, there are views that GPL licenses are two-

party contracts for which contract law remedies may

be sought and views that GPL licenses are one-party

licenses for which copyright law remedies may be

sought.(Cheng,2023) Under China's legal system,

there is no dichotomy between contractual and

unilateral licenses, and therefore there is no such

controversy. Both in terms of doctrinal analysis and

judicial practice, GPL licenses can only be uniquely

interpreted as having contractual effect in China.

Although there are contrary views in the academic

circle that GPL has not gone through the two stages

of offer and promise in the traditional sense, and

therefore has not reached a consensus of intent, it

cannot be regarded as a contract.(Ma,2022) However,

according to the theory of offer and promise in civil

law contract law, even if there is no traditional

invitation and promise in the process of establishing

the agreement, it can be determined that the

agreement has been reached through the practical

behavior between the subjects. In GPL, the developer

uploads the code and the attached open-source license

to the public platform, which can be regarded as an

"offer"; if someone chooses to download the code,

even if he/she does not read the license, he/she can

still be regarded as accepting the constraints of the

license by virtue of the license statement attached to

the code, which can be regarded as a "promise". If

someone chooses to download the code, even without

reading the license statement, he can be considered to

have accepted to be bound by the license by virtue of

the license statement attached to the code, which can

be regarded as a "promise". There is no obstacle to .in

civil law jurisprudence interpreting the nature of open

source agreements as contracts.

Chinese Law Perspective Study on the Legal Issues Related to the Violation of Open Source Licenses: Taking GPL as An Example

159

China Jurisprudence from existing judicial

practice also supports this. In a case heard by the

Guangzhou Intellectual Property Court in 2021

concerning the dispute over the infringement of open

source software copyright in the case of Luo Box

Network Technology Co. v. Playmate Network

Technology Co. et al, the court of first instance held

that the licensor voluntarily granted most of the rights

of its copyright to an unspecified user by disclosing

the source code through the open source license in

accordance with the provisions of China's copyright

law; and that the user's copying, modification or

redistribution of the source code under the framework

of the license was also based on a voluntary

commitment to the license. Release the source code,

also based on a voluntary commitment to the license.

The license comes into effect when the user performs

these acts and is legally binding The GPL 3.0

agreement, as a copyright agreement of a contractual

nature, is regulated within the scope of China's

Contract Law (now the Contracts Section of the Civil

Code).((2019)Yue 73 ZhiMinChu 207 Hao)The

judgment clarifies that open source licenses are

contractual in nature and that open source licenses are

a form of contract chosen by the developer when

opening up the source code, which is regulated by the

Contracts Section of the Civil Code of China. It

protects the interests of the parties to the contract

through clear contractual rights and obligations,

which enhance the enforceability and protection of

the terms of the open-source license, as well as the

certainty and security of the transaction.

2.1.2 Competing Responsibilities

China The Copyright Law and the Regulations on the

Protection of Computer Software, as amended in

2021, stipulate that computer software is a copyright-

protected work and enjoys copyright rights such as

the right to publish, the right to attribute, the right to

modify, the right to reproduce, and the right to

distribute. Therefore, using software in violation of an

open-source license will infringe the copyright of the

software developer.

According to the above, the GPL open source

license is regarded as contractual in nature in China,

so the licensee can be held liable for breach of

contract if it violates the open source license, and then

there is a competition between tort liability and

breach of contract liability when the license is

violated. The parties may demand the licensee to bear

contractual liability for failure to comply with the

open source license or infringement liability for the

licensee's infringement of the licensor's copyright,

both of which are different in terms of the burden of

proof, as well as the standard of proof and the final

remedies.

2.2 Infringement claims for breach of

GPL open-source licenses are more

appropriate

2.2.1 The Application of Infringement

Claims Is More Conducive Times

Safeguarding The Legitimate Rights

and Interests of Open-Source Software

Owners

In terms of the form of liability, the liability for

breach of contract is generally divided into the

following: continuation of performance, remedial

measures, compensation for losses, liability for

liquidated damages, and liability for a deposit.

Liquidated damages and deposits are not involved in

open-source licenses, so only the first three types of

liability need to be discussed. Continued performance

and remedial action both imply that the licensee

continues to comply with the obligations of the open-

source license. The GUN General Public License

(GPL) v3.0 document published by the Free Software

Foundation states the licensee under the GPL

license's obligations: 1. pass on the same freedoms; 2.

protect the user's legal rights; 3. make the source code

available; 4. make modifications explicit; 5.

nonproprietary terms; 6. protect the user from

anticircumvention laws; 7. make the full counterpart

of the source code available; and 8. prohibit

sublicensing.(GNU,2007.) Therefore, when a

licensee breaches a license and needs to be ordered to

comply with the above obligations, it may involve

providing the source code, providing the complete

source code, requirements such as marking

modifications, etc., which are difficult to implement

and enforceable by the court. For example, if the

defendant is required to disclose the source code,

some of the source code may have already become

the defendant's trade secrets or undisclosed patented

technology programs, so it is difficult to require the

defendant to disclose it; if the defendant fails to

disclose it, it will involve the problem of enforcement

by the court, and the requirements such as "providing

the source code" and "marking the modification" are

not as important as property generally. Requirements

such as "provide source code", and "mark

modification" are not as good as the property can be

directly executed by the court, the court can only urge

the defendant to fulfill its obligations as soon as

possible, and the final performance effect is also

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uncertain, so it is difficult to achieve the relief, such a

situation is extremely unfavorable for the

maintenance of the plaintiff's rights.

Tort liability, on the other hand, is mainly divided

into cessation of infringement, elimination of

influence, apology, and compensation for damages.

Compared with the liability for breach of contract, the

defendant is ordered to fulfill the tort liability is more

achievable. Moreover, if the infringer constitutes

intentional and serious circumstances, the infringer

can also be punitive damages, although the judicial

practice has not appeared in the situation, at least

there is the possibility of increasing the amount of

compensation. According to the current judicial cases

can also be known, the damages of the tort claim are

much higher than the amount of compensation for

breach of contract, therefore, the plaintiff almost

always chooses the tort claim.(Zhao,2023) This

suggests that tort claims are more likely to protect the

owners' rights open source software than contract

claims.

In practice, the application of an infringement

claim presents the problem of the difficulty of

determining the amount of damages. The distribution

of open-source software essentially constitutes a

general license without license fees, which means that

it is difficult to quantify the actual loss or royalties of

the right holder when determining the amount of

compensation. Determining the amount of

compensation based on the infringer's proceeds of the

offense would require the infringer to provide

information on his or her profits. However, if the

infringer does not use the infringing software for

production or commercial operations, or is unwilling

to provide such information, the determination of the

amount of compensation is again difficult. In such

cases, it may ultimately be necessary to rely on

statutory damages provisions to determine the

amount of compensation. In judicial practice, it is

usually at the discretion of the judge to determine the

amount of damages to be awarded.(Chen,2023)

However, the remedy of tort is still relatively more

achievable and more conducive to the protection of

the licensor's rights than a claim for breach of

contract.

2.2.2 Extraterritorial Perspectives

Currently, the U.S. judicial practice has reached

basically a consensus, that is, open source software

rights holders can claim infringement of copyright

infringement and also can claim breach of contract. In

the United States judicial practice, in the early stage

of the development of open source software, the

United States court hearing open source software

cases, the right to copyright infringement of the cause

of action, and request for injunctive and damages

relief to support the claim. (Zhang,2004)However,

with the development of open source software, the

U.S. courts also believe that the violation of the GPL

open source license is a breach of contract, and does

not constitute copyright infringement, the copyright

infringement of injunctive relief filed by the right

holder of the lawsuit shall be rejected (Robert

JACOBSEN v. Matthew KATZER and Kamind

Associates, Inc, 535 F.3d 1373).With the

increasing number of open source software

infringement cases and the development of U.S. case

law, the courts now have a new solution to the idea

that, in the case of a software user's violation of an

open source license, the right holder can claim

injunctive relief for copyright infringement as well as

seek relief for breach of contract under contract law.

For example, in Jacobsen v. Katzer, the Court of

Appeals for the Federal Circuit held that the terms of

a license can constitute "copyright conditions" rather

than mere "contracts", and that both should be

recognized by law(2017 U.S. Dist, No. 16-CV-

06982-JSC).

However, FSF and its founder Richard Stallman

have always opposed the legal characterization of a

GPL license as a contract. The reason is that The

United States is a common law country that

distinguishes between state and federal law, with

contract law falling under state law and copyright law

falling under federal law. The contract law of each

state has some differences, if the GPL license is

qualified as a contract, or the breach of contract to

provide relief through the contract law, there will be

uncertainty in the process of defending the rights,

which may lead to inconsistency in the judicial

decision; moreover, the state law is lower than the

federal law, if the GPL license applies to the rules of

the contract law, the effect will be lower than the

federal law of the copyright law, which will not be

conducive to the achievement of the functional

purpose of the GPL license. Richard Stalman insisted

that software should not be privately owned, stressing

that society needs information that can be freely read,

modified, and enhanced, not closed "black box"

software. He argued that proprietary control by

software owners deprived users of their freedom and

limited their autonomy and that society should

encourage the spirit of volunteerism and mutual

assistance, rather than treating mutual assistance as

"piracy"(Stallman,2024). Therefore, he created a

strict GPL license to guarantee the continuation of

software freedom and open source. The relativity of

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161

the contract makes the effect of the contract only to

the parties to the contract, and the third party other

than the parties to the contract can not enjoy the rights

in the contract and is not bound by the contract. In

order to ensure that the GPL license is binding on

everyone, not just the parties to the contract, the FSF

and Stallman hope that it can take advantage of the

exclusivity of the copyright, which is of universal

validity, and break through the limitations of the

relativity of the contract, so as to make the GPL

clause more solid under the U.S. law(Zhang,2022) so

as to truly realize the freedom of the open source

software, and to promote the development of its

development, which is in line with the concept of

"Freedom". The concept of "freedom" is fulfilled.

In our legal system, there is no distinction

between federal and state law, nor is there a

dichotomy between unilateral and contractual

licenses, so GPL licenses can only be interpreted as

contracts under our law. However, the designer of the

GPL did not intend the GPL to be a contract with

relativity but preferred it to have a worldwide effect.

Such a "universal validity" is also reflected in our

policy to a certain extent. The Outline of the

Fourteenth Five-Year Plan for National Economic

and Social Development and the Vision 2035 clearly

states that it supports the development of "open

source" digital technologies. Among them, "the

construction of open source algorithm platforms such

as deep learning frameworks" is included in the new

generation of artificial intelligence science and

technology frontiers, and "supporting the

development of digital technology open source

communities and other innovation consortiums,

perfecting the open source intellectual property rights

and legal system, and encouraging enterprises to open

up their software source codes, hardware designs, and

application services" is listed as one of the policies for

strengthening the development of digital technology.

Application services" is listed as an important

initiative to strengthen the application of key digital

technology innovation.The Outline for the

Construction of a Strong Intellectual Property

Country (2021-2035) also points out the need to

"improve open source intellectual property rights and

the legal system". It can be seen that China's policy is

centered on the development of "open source" and is

committed to accelerating the process of "open

source". In this process, compared with the protection

of open source software users, China is more inclined

to safeguard the rights and interests of open source

software and its licensors, aiming to promote the

prosperity and development of open source software

by strengthening the protection and improving the

protection system. Only by giving open source

licenses "universal validity" and making them

binding on all people can we protect open source

software more effectively and ensure that it receives

more comprehensive and strong protection. China's

practice in dealing with disputes related to the GPL

license should try to achieve the effect of the world.

Therefore, the application of infringement of GPL

license can be more in line with the original designer's

concept, and at the same time, if there is a dispute

involving extraterritorial open-source software, it can

also make China's justice in line with the international

standards.

Relatively speaking, the German legal system is

similar to ours. German courts are more uniform in

the characterization and attitude towards the violation

of open source licenses. German courts tend to regard

GPL open source licenses as contracts with

cancellation conditions, and when the licensee

violates the terms of the GPL license, the license is

considered invalid, i.e., the licensee's actions are not

licensed at that time, which constitutes an

infringement of rights, e.g., the cases of Welte v. D-

Link and Harald Welter v. SiteCom(Lv,2009). Thus,

German judicial practice tends to favor infringement

claims for breach of GPL licenses.

2.3 Claims for Infringement of

Open-Source Licenses Should Be

Strictly Limited times Punitive

Damages

It is worth noting that for GPL license violations, the

FSF's usual requirement is simply to correct and build

an enterprise-level GPL compliance program, rather

than pursuing the financial benefits of damages. The

FSF states in its Implementing the GNU GPL - The

GNU Project article that, while more stringent

measures are sometimes necessary, the Free Software

Foundation's goal has always been to ensure

compliance and to prevent future violations, rather

than pursuing damages or public admissions of

wrongdoing. "In nearly a decade of GPL

implementation, I have never insisted that a violator

pay damages to the Foundation for a violation, and I

have rarely asked a violator to publicly admit fault.

Our position has always been that ensuring

compliance and no further violations is the most

important goal. We try to make it as easy as possible

for the violator to be compliant, and we've always

been past the point of blame."Therefore, when

determining the amount of compensation, the court

should take into account the FSF's goal and

philosophy in creating the GPL license, should more

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strictly examine the high compensation claims and

determine the reasonable amount of compensation,

and be cautious in using punitive damages, otherwise,

it may result in the situation that some people

intentionally filed infringement lawsuits in order to

obtain a high amount of compensation, which makes

China's open-source software practice go against the

essence of the open-source software philosophy.

3 THE "OPEN SOURCE

DEFENCE " SHOULD NOT BE

UPHELD

In practice, there is also the issue of legal liability for

infringement of open-source software generated

under GPL licenses. Taking the GPL license as an

example, due to its "strong contagiousness", once the

software contains code under the GPL license,

subsequent works (including modified versions and

derivative works) created based on the software must

continue to be open-sourced under the GPL license.

Therefore, in practice, there may be cases where the

licensee has used the open source code with a GPL

license but has not complied with its open source

obligations, and the perpetrator is sued for

infringement of the above-mentioned software by the

software developer, but the perpetrator defends by

claiming that the plaintiff (the licensee) has failed to

disclose the source code in accordance with the

requirements of the GPL license, and the court should

not support such a defense. Simply put, the "open

source defense" is a defense raised by the defendant

in a software infringement case on the basis that the

plaintiff's right holder's software in question uses

open source code and is in breach of the open source

license.

In the case of Nanjing Future Company v. Jiangsu

Cloud Dragonfly Company and Others for

Infringement of Software Copyright (hereinafter

referred to as the "Future Case",((2021) Su 01

MinChu 3229 Hao)Future Company alleged that the

"Cloud Dragonfly Software - Bidding Document

Creator" released by Cloud Dragonfly Company was

highly similar to its software in terms of its functions

and realization, constituting an infringement of

Dragonfly Software - Bidding Document Production

Tool" released by Cloud Dragonfly was highly

similar to its software in terms of function and

implementation, constituting infringement. Cloud

Dragonfly argued that the functions of the Cell

components in Future's software, such as SaveFile

and CloseFile, were developed by a third party, and

Future did not enjoy copyright in them. The Court of

First Instance upheld the open source defense,

holding that specific files in the source code of the

main program of the software involved in the case

were subject to the GPL agreement because they

contained the GPL (version 2.0) statement. Since the

preview program was not a derivative work of the

GPL open source code in question and was not

"infected" by the GPL code, it was not subject to the

GPL agreement. If it is found that the third party's

infringement of computer software is based on

Future's rights, it will essentially protect Future's

profits from its misconduct and give it an improper

legal status and special commercial advantage, which

is contrary to the legal principles of fairness and good

faith. In addition, providing tort protection to Future

in violation of the GPL agreement would hollow out

the GPL agreement's core provision of continuous

open source source code, negatively impacting the

GPL agreement's purpose of promoting open source

dissemination of source code.

Ltd. v. Zhejiang Yibang Communication

Technology Co., Ltd. and others for infringement of

computer software copyright disputes (hereinafter

referred to as the "Nethru case",((2021)

ZuiGaoFaZhiMinZhong 51 Hao) Nethru alleged that

Yibang and Qio had used the source code of

"OfficeTen" without authorization in similar

software. The two defendants argued that they had

used the source code of "OfficeTen" in similar

software without authorization. The two defendants

argued that "OfficeTen" was developed based on the

OpenWRT open-source software system, which

should comply with the GPLv2 agreement, and that

Nethru was obliged to disclose the source code of the

software in question. Therefore, the two defendants

claimed that their use of the software did not

constitute infringement of Nethru's copyright. The

Court of Second Instance held that the Defendants'

defense of non-infringement based on GPL 2.0 could

not be established because the case was a copyright

infringement dispute over the software in question,

not a contractual dispute; and it was difficult to

ascertain the facts relating to GPL 2.0 when the open

source software right holder was not a party to the

case. Even if it is assumed that the plaintiff violated

GPL 2.0, resulting in the existence of defective rights

of the software, the assumed defect does not affect the

plaintiff in this case to seek remedies for infringement

of copyright; whether the software developer violates

the GPL 2.0 and whether to enjoy the copyright of the

software, are two relatively independent issues of

law, and it is inappropriate to confuse them, so as to

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avoid unreasonable deprivation or limitation of the

original contribution. The two issues should not be

confused, so as not to unreasonably deprive or restrict

software developers' copyright based on their original

contributions.

For the "open source defense", China's judicial

practice attitude is not consistent, most views do not

support the open source defense. According to

statistics, of the 11 cases of related disputes to date,

only one case of successful defense, two cases of

partial defense, one case of successful stage defense,

and seven cases of failed defense.(Xu,2024)

This paper argues, firstly, that the originality of an

author's creative process cannot be denied because of

the illegality of the process. Just as the court in the

NetWorks case held that whether the software

developer itself violates the GPL license and whether

it enjoys software copyright are two relatively

independent legal issues that should be viewed

separately and independently, the use of copyright

law to protect works created by right holders in

violation of the law is not in conflict with the fact that

the right holders should be held liable for violating

the obligations of the open source license. The scope

of protection of the generation modified or derived

from the original open source code by the copyright

law lies in the part which is original in relation to the

original open source code, rather than the part in the

original unauthorized open source code. The

protection of illegal deduction of software works is in

line with the basic mechanism of China's copyright

law to balance innovation and competition,

empowerment and restriction, protection and

dissemination, exclusivity and sharing, and to avoid

"over-protection" of the original work by copyright.

(Sun,2024)Moreover, the protection of the creation

and the original part of the creation is conducive to

stimulating public creativity.

Secondly, the court in the Future case held that

protecting the copyright of a right holder who

violated an open source license was an act "contrary

to the legal principles of fairness and good faith".

Here, the court cited basic principles of civil law as

theoretical support. However, it seems inappropriate

to use the principles of fairness and good faith directly

as the legal basis for the open-source defense. The

basic principles of civil law reflect the core attributes

of civil law, and as general norms of behavior and

standards of value, they are used in judicial practice

to interpret the law, supplement loopholes, and

correct evaluations. Nevertheless, the principles of

fairness and good faith do not specify the rights and

obligations of civil subjects, and judges are usually

not allowed to base their decisions directly on these

principles. Only when there is a loophole in our

the basic value of civil law, it is allowed to invoke the

principle of fairness and good faith, in order to realize

the evaluation or amendment of the law.(Zhang,2024)

The "Future Case" is not in contradiction with the

basic value judgment of civil law, and as analyzed

above, the case reflects the protection mode of

"infringement to infringement, creation to creation"

in the judicial practice of copyright protection in

China.

Therefore, although the protection of the illegal

use of open source code generated by the generation

of a violation of the principle of fairness and good

faith, this is not in conflict with the protection of the

originality of the part. In dealing with the case of open

source software infringement, we should not only

consider the protection of the prior software

developers but also consider the protection of the

secondary creators in the future, balance their

interests, and promote the development of open

source software in China through the system path

suitable for our country.

4 CONCLUSION

Open source license is a crucial part of open source

software, which is not only the core of legal

protection, but also the key to ensuring the free

circulation of open source software and the rights and

interests of developers. At present, China's protection

of open source software and related things in the field

of copyright has not yet formed a complete

mechanism for the protection of the right holder, and

the rules of the path are not perfect, the right after the

damage to the relief is weak, the amount of damages

is difficult to determine, so all these shortcomings can

not effectively promote the sustainable development

of open source software. We should learn from

overseas mature experience, rooted in China's legal

soil, to explore a set of legislation suitable for China's

judicial system. Of course, in the development of

open source software and licenses, we should always

keep in mind the goals and concepts of its creation,

and combined with the understanding of China's

system, to provide theoretical support and practical

guidance for the legal protection of China's open

source software, in order to promote the healthy

development of open source software in China, and at

the same time to protect and stimulate technological

innovation.

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