Date: 2026-10-01
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Author: Beijing Henglue Law Firm[Direct answer]In the Beijing area, open-source software can be used for commercial operations, but it must comply with its license agreements. Otherwise, there is a risk of copyright infringement and breach of contract. Permissive licenses such as MIT and Apache-2.0 generally only require retaining copyright and license statements; infectious licenses such as GPL and AGPL require that derivative works be distributed as open-source in their entirety. In the context of online services, AGPL also requires that source code be provided to users. According to Articles 10 and 53 of the Copyright Law of the People's Republic of China (amended on November 11, 2020 and implemented on June 1, 2021) and the relevant provisions of the Computer Software Protection Regulations (amended on January 30, 2013), using software in violation of license conditions may constitute infringement and result in cease-and-desist orders and compensation. It is recommended that enterprises establish a list of open-source components and a license review process.
1. Problem background and typical scenarios
Open-source components have been deeply integrated into the R&D process, and risks often arise in three scenarios: statically linking GPL components into self-developed software and then releasing it as closed-source; using AGPL code in software-as-a-service without making the source code available to users; and ignoring the obligation to provide attribution and deleting license files from deliverables. Employees mistakenly submitting company code to public repositories or introducing code fragments from unknown sources may also lead to licensing conflicts. When handling similar disputes in Beijing, courts typically review the nature of the license agreement, the degree of connection between the disputed software and open-source code, and the fulfillment of open-source obligations. Enterprises can refer to this for reference.Intellectual property protection and corporate legal servicesEstablish a compliance system.
II. Key points of contention
There are three key points. Firstly, the legal nature of the license agreement: mainstream adjudicators view conditional open-source licenses as binding copyright license contracts, and violating the conditions will automatically terminate the authorization, rendering continued use unlawful. Secondly, the scope of contagion: the GPL series requires that derivative works based on the code be released under the same license as a whole. The key criterion for determining this is the degree of calling and coupling between the codes, rather than simply counting the number of files. Thirdly, the concurrence of breach of contract and infringement: breaching the license may constitute a breach of contract, or it may be deemed an infringement of the right of reproduction, the right of modification, and the right of dissemination on information networks, thereby incurring the responsibility of ceasing infringement and compensating for losses.
III. Professional analysis by Henglue Law Firm
The practical difficulties of open-source compliance disputes lie in evidence collection and technical comparison: the right holder needs to prove that the software under complaint contains code subject to licensing restrictions, while the enterprise needs to explain the usage methods, open-source compliance status, and possible rectification measures. When providing intellectual property compliance services, Henglue usually first conducts an inventory of components and license lists, marks the locations where infectious licenses are used, then assesses whether there are violations such as closed-source releases, unattributed use, or failure to provide source code, and proposes rectification solutions including replacing components, isolating calls, supplementing open-source components, or obtaining commercial licenses. Setting up license checkpoints in the R&D process is more cost-effective than dealing with issues after the fact; when purchasing software externally, it is also necessary to stipulate intellectual property guarantees and infringement compensation clauses in the contract, which can be combined with other measures to further enhance protection.Business and contract dispute services for enterprisesImprove the text.
IV. Practical suggestions and legal basis
Practical advice:
- Establish an open-source component and license list, and register the version, source, and license type;
- During the selection phase, conduct a license compatibility review to prevent infectious licenses from entering the closed-source core modules;
- Strictly fulfill the obligations of signing the name, retaining the license text, and providing the source code;
- After a dispute arises, immediately stop using the product and initiate replacement or rectification, and keep a record of the process.
5. Henglue Law Firm's Advice
Open-source does not mean free, let alone exemption from liability. Enterprises should embed license audits into the entire process of procurement, R&D, and delivery, and be particularly vigilant against infectious licenses and online service terms. When purchasing software from external sources, they should require clear intellectual property guarantees and liability for infringement compensation in the contract. Once receiving a notice of infringement, they should immediately stop using the software, assess the cost of rectification, and consider replacing components or obtaining commercial licenses to avoid the risk of increased compensation and business disruption caused by delays. For cases involving product architecture adjustments and compliance rectifications, they can proceed through the following steps:Special services and other case servicesObtain support.
VI. Frequently Asked Questions
Q1: Is there a high likelihood of being sued if you use open-source code, and of having your infringement confirmed?
It depends on whether the license conditions have been violated and the degree of code interdependence. If the software being sued indeed contains code subject to the GPL or AGPL and has not been open-sourced as required, mainstream judges tend to determine that the license is automatically terminated and continued use constitutes infringement; if it is only a permissive license and the copyright and license statements have been retained, it usually does not constitute infringement. Enterprises can organize defenses from three aspects: usage methods, code coupling degree, and rectification status, and complete replacement or open-source rectification as soon as possible to reduce the risks of ceasing use and compensation.
Q2: What materials do enterprises need to prepare to prove their compliance with regulations?
It is necessary to prepare a list of open-source components and version records, the original license text, the submission records and dependency lists of the code repository, the license and signature files included in the external deliverables, internal compliance review records, and proof of rectification and replacement after discovering problems. If the purchaser claims that the purchased software infringes intellectual property rights but the purchaser himself/herself is not at fault, it is also necessary to provide the purchase contract, the supplier's intellectual property guarantee clauses, and communication records to claim breach of contract liability or require the supplier to bear compensation.
Q3: Approximately how much does it cost to resolve an open-source licensing dispute?
The cost depends on the cost of the dispute process and technical comparison. The litigation fees are calculated according to the amount of the litigation request in stages, and the losing party shall bear them; the attorney's fees are usually negotiated on a per-case or percentage basis. If software similarity appraisal is required, the appraisal fees are often the main additional expenses. Most cases can also be resolved through negotiation and settlement, with relatively manageable costs. It is recommended to first conduct a compliance check to determine whether it is a rectification issue related to open source or whether it has entered litigation, and then decide on the investment.
Q4: How long does it usually take from communication to the conclusion of such cases?
If the issue is resolved through negotiation, it usually takes several weeks to several months to reach an arrangement for rectification and settlement. If the case proceeds to litigation, the first-instance ordinary procedure typically takes six months, and the summary procedure takes three months. Cases requiring source code appraisal or technical investigation will be significantly delayed. The second-instance procedure generally takes three months. If the enterprise immediately stops using the infringing software and completes the rectification after receiving the notice, it can often shorten the overall handling time and gain a favorable evaluation when determining the amount of compensation.
Q5: If I receive a notice of infringement of an open-source license, what should I do first?
The first step is to conduct an internal self-audit and storage, identifying the version, source, and usage location of the code in question, and confirming whether it falls within the scope of infectious licensing. The second step is to immediately stop publishing or distributing the version of the software suspected of infringement, and prepare replacement components or supplementary open-source materials. The third step is to verify the procurement chain and claim intellectual property guarantees from upstream suppliers. The fourth step is to entrust lawyers to evaluate the external response strategy and settlement plan. It is crucial not to delete repository records or continue distribution, as this may be deemed malicious and result in increased liability.
The above answer is based on the judicial practice in Beijing. The judicial interpretations in other provinces or cities may vary. For specific cases, please refer to the local rules and evidence situation.
VII. Relevant public cases (for reference, not handled by our firm)
The following cases are all sourced from the official websites of courts at all levels, judicial authorities, and authoritative media, and have been publicly released. They are not related to the cases handled by our firm. They are provided solely for reference in understanding relevant adjudication rules and do not constitute opinions on specific cases.
[Case No.](2019) Guangdong Provincial People's Court Case No. 207 of 2019
[Trial Court]Guangzhou Intellectual Property Court (Case of Infringement of Computer Software Copyright, Selected as a Typical Case of Guangzhou Intellectual Property Court and a Typical Case of Intellectual Property Protection Promoting the Development of New Productivity in Guangdong Courts)
[Judicial Summary]The shareholder of Luo * Company, Luo *, uploaded the source code of the VirtualApp software developed by him to Github and applied the GPL V3 open-source license agreement. Subsequently, the copyright of the software was registered after transfer. A You Company developed four WeChat video beauty camera apps, among which the sandbox avatar function used the source code of the software involved in the case. It charged membership fees but did not provide the source code for download. The Guangzhou Intellectual Property Court held that Luo * Company had no right to add a commercial use restriction clause to the project subject to the GPL V3 agreement; the functional codes of the sandbox avatar part, as a derivative part of the infringed software, were released as a whole. The GPL agreement is highly contagious, so not opening the source code of the entire software violates the agreement. The GPL V3 agreement is a copyright contract with a condition of termination. If the agreement is violated, the authorization obtained according to the agreement will automatically terminate, and continued use will constitute infringement. The court ruled that the defendant should stop providing download, installation, and operation services for the four software containing the infringed source code, and compensate for economic losses and reasonable expenses for defending rights totaling 500,000 yuan.
[Source]The official website of the Guangzhou Intellectual Property Court and the Guangdong Court Network (Luo * Company v. * You Company and Others Dispute over Infringement of Computer Software Copyright) (2021-05)
If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Intellectual property protection legal services·Beijing Henglue Law Firm
Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.