[License-discuss] linking exception in OpenJDK

Patrice-Emmanuel Schmitz pe.schmitz at googlemail.com
Wed Dec 2 12:28:51 UTC 2015


A lot of difficult questions indeed.

The Directive is translated in 23 EU languages (
http://eur-lex.europa.eu/legal-content/FR/TXT/?uri=celex:32009L0024 ) and
implemented in the various national laws. The first version (91/250/EEC)
had to be implemented on 31/12/1992 latest.  I am afraid that it could take
a lot of time to trace all implementations in the various Member States,
therefore I just assume that they have done it.

In general, implementation is the reproduction of the articles of the
Directive (in each relevant national language) into some articles of the
national “Code for intellectual property”. For example in Belgium, you will
find a reproduction of the French and Dutch version under Article XI.300 of
the Code (last published version in the Belgian Official Journal

Recital (15) of the Directive is part of it as “rationale”, not as
“article”. Therefore this part is normally not implemented as such in
national legislation. However in case of hypothetic litigation, chances are
high that the Court of Justice of the European Union will be requested to
clarify (by preliminary rulings), and in such case the rationale (15) will
be visited by the Court.

Case law related to the Directive and its implementation is extremely rare:
it was said that Case 406/10 SAS vs WPL of May 2, 2012 (involving two
proprietary software vendors) was a premiere, more than 20 years after the
publication of the Directive). Based on the rationale (15) and on this
case, it is a “reasonable opinion” as European lawyer that in case of
litigation on linking, the Court – if requested by the national judge to
provide some preliminary rulings, and after hearing the opinion of Advocate
General - would declare that linking done through a “reproduction of the
program code that is indispensable to achieve interoperability” is
authorised as an exception to general copyright rules.

Although representing the Commission as guardian of the Treaties in
preliminary ruling cases (the Legal Service routinely intervenes as amicus
curiae / friend of the court – similar to an expert witness giving a Court
the benefit of his advice), it is uncertain that the Commission itself
could ask for such preliminary rulings. This specific case is not foreseen
by the Treaties. Commission may act as plaintiff or defendant. Therefore we
have to wait for some hypothetical national litigation or some action
against the Commission as software licensor.

One could not exclude either that in case of linking between a GPL-covered
program and a proprietary program, the Court may consider that distributing
the linked work under a proprietary license would* “**prejudices the
legitimate interests of the rightholder**” *because the protection of free
software is a fundamental interest for the free software movement. But the
same prejudice would not exist when linking two F/OSS programs (i.e. in
case their F/OSS licenses have incompatible copyleft provisions)*.*

*Best regards,*


2015-12-01 23:12 GMT+01:00 Joshua Gay <jgay at fsf.org>:

> P-E,
> Thank you for sharing this legal information. I have a bunch of
> questions and would appreciate help in understanding this further.
> Is section 15 part of the actual directive, or is it simply part of the
> rationale that helps explain the intent behind the 12 articles that
> follow? If the articles are the actual directive, might those be more
> narrowly interpreted and more narrowly applicable than the general
> rationale cited? And also, its hard for me to see which articles relate
> to section 15 as it would apply to linking to a library. If I understand
> this correctly, an EU directive was an agreement amongst member states
> to uphold or create local laws. Do all EU member states have laws for
> this particular directive, and if so, does the same rationale described
> in paragraph 15 apply to all of those laws in each of the respective
> member states?
> Sorry I know that is a lot of questions, but, I am genuinely trying to
> make sense of how this EU directive works and how it applies to the
> licenses my org publishes and provides educational materials on.
> Any and all help is appreciate.
> Thanks,
> Josh
> --
> Joshua Gay
> Licensing & Compliance Manager  <http://www.fsf.org/licensing>
> Free Software Foundation        <https://donate.fsf.org>
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Patrice-Emmanuel Schmitz
pe.schmitz at googlemail.com
tel. + 32 478 50 40 65
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