Dr. Till Jaeger
Special legal challenges with regard to free and open source software have occurred in Russian law.
In Russia, the office suite “AlterOffice” was excluded by the Ministry of Digital Development, Communications and Mass Media of the Russian Federation from the „Unified Register of Russian Programs for Electronic Computers and Databases” as it was largely identical to LibreOffice and the vendor Almi Partner LLC therefore did not have exclusive rights to use it. The Ministry decision No 745 was overturned by a judgment (see English translation) of the Moscow Arbitration Court which was in turn reversed on appeal (see court documents).
Register of Russian Programs
Based on Art 12.1 of the Federal Law N 149-FZ "On Information, Information Technologies and Information Protection" the Russian government established the rules for a „Unified Register of Russian Programs for Electronic Computers and Databases”. Inclusion in the register has some significant benefits for software vendors, including exemption from sales tax and preference in tenders from national authorities. Among others it is a requirement to be accepted as “domestic software” that the owner of the exclusive rights in the software is the Russian Federation, Russian individuals or companies with a foreign participation of less than 50%.
AlterOffice being just a Russian version of LibreOffice?
The vendor Almi Partner LLC registered the office suite "AlterOffice" in the Russian Register of Software on 24.04.2019 under the number 5287. After an objection by the competitor New Cloud Technologies LLC, which distributes the competing product "MyOffice" and claimed that AlterOffice is not compliant with applicable rules, the compatibility of the registration with the Rules of formation and maintenance of the Unified Register of Russian Programs for Electrionic Computers and Databases was reviewed and AlterOffice was excluded from the register on 19.11.2019. The Ministry decision No 745 (with amendment as of Ministry decison No 80) was based on violation of §§ 5 and 33 of the Rules for the formation and maintenance of the Unified Register of Russian Programs.
First instance decision
The Arbitration Court of Moscow overturned the Minitry decision in a judgment dated 10.09.2020 (English translation) and reasoned as follows:
a) The AlterOffice software had been entered in the register of the Federal Service for Intellectual Property (ROSPATENT) as No 2019611306 for Almi Partner LLC on January 24, 2019 (see English translation, so that according to Article 1262 (6) of the Civil Code of the Russian Federation it is presumed that Almi Partner LLC is the owner of the exclusive rights of AlterOffice.
b) A violation of section 3.2 of the Mozilla Public License, version 2, (MPL-2.0) due to the missing provision of the source code and of section 3.4 MPL-2.0 due to the deletion of the file with the names of the authors was not confirmed. The source code was available at https://github.com/Almipartner/core.
The Arbitration Court of Moscow therefore ruled that the Ministry for Digital Development, Communications and Mass Media of the Russian Federation was obliged to reinstate AlterOffice in the Register of Russian Software under No. 5287.
Appeal proceedings
The Ministry for Digital Development, Communications and Mass Media of the Russian Federation appealed the decision to the Ninth Arbitration Court of Appeal. In a court decision dated 01.12.2020 (see English translation), the first-instance ruling was reversed. However, the decision is based only on a withdrawal of the original application by Almi Partner LLC. No decision was made on the merits as to whether Almi Partner LLC can prove exclusive rights in AlterOffice and whether there is an infringement of MPL-2.0. In this respect, it is noteworthy that AlterOffice was re-listed in the Register of Russian Software under the new number 166522 based on Ministry decison dated 12.10.2020 - i.e. before the decision of the Court of Appeal.
Open questions
The decisions of the Moscow courts shed interesting light on the legal situation in Russia, but finally leave open the extent to which registration in the Register for Russian Software is still possible even when open source software is used. Against the background that almost every modern software development includes open source components, this should rightly not be considered a general exclusion criterion. In the case of an almost complete clone, on the other hand, the question arises as to whether it is sufficient for only a minor portion to originate from domestic rights holders in order to meet the criterion of "exclusive rights" of a Russian citizen or company, and where the line should be drawn for this.
The audit of compliance with the license terms of the applicable open source license and the criterion of "lawful marketing" according to § 5 b of the Decree of the Government of the Russian Federation dated 16.11.2015 No. 1236 indicates that compliance with open source licenses in Russia is of considerable practical importance. The proceedings show that it is not only the authors themselves who can assert infringements in formal proceedings, but also competitors who can take action against an incorrect entry in the register for Russian software (see page 7 of judgment dated 10.09.2020). The proceedings thus have a component in terms of competition law.
In particular, the use of proprietary license terms for copyleft software is likely to be in focus. For example, the license information of AlterOffice contains an unclear combination of references to the MPL-2.0 and LGPL on the one hand and proprietary license terms (https://github.com/Almipartner/core/blob/master/COPYING) on the other hand, and it is unclear to which code the proprietary license terms should apply at all (see https://github.com/LibreOffice/core/compare/master...Almipartner:master).
