In a previous post (in french), we talked about the March 19, 2021 decision of the Paris Court of Appeal.

This decision had ruled that a software publisher who complained about a violation of its license could not use the legal tools of infringement. This position of the Paris Court of Appeal seemed to us to be highly questionable, and we hoped that the software publisher would appeal to the Supreme Court.

The decision of the Court of Cassation was rendered on October 5, 2022. It is in line with the position of the Court of Justice of the European Union in a judgment of December 18, 2019 (obtained by our firm). The software publisher wins on the subject of free riding.

We will not discuss this topic in this post. Above all, it obtains that the judgment of March 19, 2021 of the Court of Appeal of Paris be quashed. The case will therefore be retried. The publisher’s claim for infringement had been rejected because the breach of the license agreement was not an infringement, the Court of Appeal had said in its decision of March 19, 2021. In so ruling, the Court of Appeal deprived the publisher of several tools provided for by the Infringement Directive, including the right to seize the infringing goods and, above all, the possibility of obtaining higher damages than those usually provided for.

The Court of Cassation has overturned this decision of the Paris Court of Appeal, and it wants its ruling to be understood as a landmark decision. To signal the importance it wants to give to certain decisions, the Cour de cassation uses several methods.

They are all present: the judgment is a cassation judgment, it is rendered « au visa » of the texts of the Infringement Directive (i.e. by referring precisely to these texts), and also by referring to the CJEU judgment of December 18, 2019. Finally, the Court has decided to publish it in its newsletter. This is very good news for software publishers.