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GNU is Not Unix Your Rights Online

GPL May Not Work In German Legal System 434

Posted by timothy from the well-the-german-law-forest-at-least dept.
erbse2 writes "It may be that the (L)GPL can not be (fully) enforced under German jurisdiction. This is at least the conclusion professor Gerald Spindler of the jurisprudential faculty of the University of Goettingen came to when he examines the Legal questions of the open source software (It's long, it's complex and it's in German and it's written by a professor, so don't expect to understand anything, if you are not a German lawyer). Heise News has the article in German, however, the fish may be with you. IANAL, however, as one can put some of the legal problems aside, most of the concerns mentioned in there should provoke at least some thought by brave men around RMS."
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GPL May Not Work In German Legal System More

GPL May Not Work In German Legal System

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  • No problem! (Score:5, Funny)

    by jsse ( 254124 ) on Wednesday July 02, 2003 @06:18AM (#6347711) Homepage Journal
    It's long, it's complex and it's in German and it's written by a professor, so don't expect to understand anything, if you are not a German lawyer

    We'd not read it even when it's short, simple and in English, so how hard could it be. :)

  • In other news (Score:5, Funny)

    by borgdows ( 599861 ) on Wednesday July 02, 2003 @06:19AM (#6347715)
    SCO's CEO, Darl Mac Bride, has just declared that the SCO company will move to Frankfurt, Germany, and will be renamed FGO (Frankfurt Germany Operation).

  • Translation (Score:5, Informative)

    by Renegade Lisp ( 315687 ) * on Wednesday July 02, 2003 @06:19AM (#6347716)
    Here's a rough, carbon-based translation of the Heise news article. Please don't hold me liable for it :-)

    The Organization of German Software Industries (VSI) considers its view reinforced that using Open-Source-Software leads to jurisdictional uncertainties. On behalf of VSI, Professor Gerald Spindler of the law faculty at the University of Goettingen examined "Jurisdictional Questions of Open Source Software". In more than 100 pages he examines the situation from different perspectives: Author's Rights (Urheberrecht), Usage Rights (Verwertungsrecht), and Liability Rights (??, Haftungsrecht).

    Spindler spots jurisdictional uncertainties for all parties involved: Developers may be held liable if software does not work as expected, even if they only participated marginally in the development, rather than being a lead developer. Employers could walk on thin ice if they pay employees for writing Open Source Software. And buyers of such software must be prepared that liability is limited to the criteria common for items given away for free, i.e. severe negligence only.

    Although one could argue about one or the other detail of the study, it spells out many problems. The license that is probably most popular for free software, the GPL, is hardly considered to be fully enforceable in the German maze of laws. For VSI, the results are probably most welcome, in order to spread uncertainty among people interested in Open Source, who are currently watching the actions of SCO against IBM eagerly.

    • Re:Translation (Score:5, Interesting)

      by Anonymous Coward on Wednesday July 02, 2003 @06:23AM (#6347730)
      The question is, does this professor have any constructive suggestions on how fix the license? Or is Open Source as a concept really verboten in the German legal system?

      • Re:Translation (Score:5, Interesting)

        by jkrise ( 535370 ) on Wednesday July 02, 2003 @07:32AM (#6348017) Journal
        " does this professor have any constructive suggestions on how fix the license?"

        Why should the license be fixed? Do idiotic clauses in MS EULAs get fixed based on user feedback? Does Munich decide to buy 14,000 licenses of GPL s/w based on this sponsored study about GPL licensing? Are Germans nuts to believe such propoganda?

        For your info, Germany has huge tech giants in IT - SAP, Siemens, SuSE - just to name a few. And ALL of them have stakes in Unix/Linux/OpenSource and cellphone segments.

        LinuxTag's protest against SCO was direct and stinging - compare that to the farce in Utah. Advice: Don't mess with Germans - they're known to be merciless and ruthless, despite their appearances.

        • Re:Translation (Score:3, Funny)

          by SunPin ( 596554 )
          Don't mess with Germans - they're known to be merciless and ruthless, despite their appearances.

          So you're saying they're passive-aggressive? I'm offended.

        • Why should the license be fixed? Do idiotic clauses in MS EULAs get fixed based on user feedback?

          Let me try to keep up: if someone asks whether Martha Stewart might avoid jail time, I'll ask "Did Jeffrey Dahmer avoid jail time?"

      • Re:Translation (Score:4, Insightful)

        by egghat ( 73643 ) on Wednesday July 02, 2003 @07:45AM (#6348078) Homepage
        Open Source is NOT the main problem, the main problem *may* be the lack of liability.

        Every producer of every product on Earth has some kind of liability. That's not different when producing software. Even if the EULA or the GPL claim otherwise. This problem gets worse with a software that is created by a team of volunteers in 10 countries around the world. Who is liable? Under which laws of which country?

        There are a lot of other minor problems in the article. E.g. that you don't need to confirm that you agree to the GPL while installing the software. (That's similiar to unacceptable "with opening this box you agree to the EULA" when the EULA is *in* the box). You simply can't agree to sth. you haven't seen.

        Btw., the article doesn't mention, how to fix the license. You'll get what you pay for ...

        Bye egghat.

        • Re:Translation (Score:5, Insightful)

          by Narcissus ( 310552 ) on Wednesday July 02, 2003 @08:30AM (#6348303) Homepage
          But there is no need to agree to anything on installation: the basis of the GPL is that there are no USE limitations. DISTRIBUTION, yes, but just because you didn't read the licence does not make you allowed to distribute, because you need permission to do so in any other case.

          The only way you are allowed to distribute the application is by agreeing to the GPL. Don't like it? Don't distribute it, but that will not stop you in ANY way from being allowed to use it.

          • Re:Translation (Score:3, Interesting)

            by LMCBoy ( 185365 )
            Yes, but I believe parent poster's point was that because the user need not agree to anything to use GPL'd software, it may not be possible to assert that the author has no liability wrt the software.

        • There are a lot of other minor problems in the article. E.g. that you don't need to confirm that you agree to the GPL while installing the software. (That's similiar to unacceptable "with opening this box you agree to the EULA" when the EULA is *in* the box). You simply can't agree to sth. you haven't seen.

          Don't get confused - the GPL is not a license you agree to when you install it. The GPL (and brethren) ask you to agree to the terms of the license when you distribute the software - normally you woul

          • I get your point, but it's not valid here.

            Every producer of every product *has* liabilities. If the software is under the GPL or the EULA doesn't matter. I should have made this clearer.

            The question the article now asks is simply: Who is to blame, when something goes terribly wrong. When sth. with SAP goes terribly wrong: Sue them. When somebody distributes virus contaminated software: Sue them. But what, if the Linux kernel contains some backdoor? Blame Linus? Alan? Redhat?

            And remember: The article is G
            • But what, if the Linux kernel contains some backdoor? Blame Linus? Alan? Redhat?

              I would say you would go after whoever maintains the kernel you were using. Could be AC, could be Linus, could be SuSE, etc. That seems like the most logical answer to that question.

              The concept of copylefting for example is difficult under German law (Urherbergesetz). "You own the copyright of everything you produce" is it's basis. That's to protect the producers. Bad for copylefting.

              I don't think you understand how copyle

      • Re:Translation (Score:5, Informative)

        by Random Walk ( 252043 ) on Wednesday July 02, 2003 @08:01AM (#6348132)
        There is a group of German lawyers who have founded IFROSS [ifross.de], a private institution to study legal problems with open source in Germany. They have quite a few publication on this issue, including a detailed study of the GPL.

        They conclude that under German law, the authors liability is most probably limited to intentional damage and gross negligence.

        Also, they argue that clause 2 (allowing modifications) and clause 9 ("and any later version") may be problematic. The problem with clause 2 is that modifications of a program may (e.g.) tarnish the reputation of the author, and legally one cannot waive one's right to sue for that (at least in Germany). Also, apparently the author may claim that modifications violate the artistic integrity of her work. However, the analysis foresees problems mainly for works of art, rather than utility programs. Clause 9 is problematic because here the author waives rights for future usage modes that she cannot yet foresee. But licences can only apply to usage modes presently known.

        The baseline of problems with the GPL seems to be that in Germany (and, I think, also in other european states), waiving or selling of basic personal rights is usually not possible.

        • Re:Translation (Score:5, Insightful)

          by ajs ( 35943 ) <ajs.ajs@com> on Wednesday July 02, 2003 @10:18AM (#6349252) Homepage Journal
          Just to review the core strength of the GPL, while the GPL may have many satellite weaknesses in many legal systems, it will always fall back on revocation.

          That is, if you cannot apply the GPL, you MUST NOT apply it. As soon as you are without the GPL, you have source code and binaries for something that you are now not allowed to distribute without getting permission from the author, except as allowed by your country's take on fair use.

          The GPL is a voluntary license, and you never HAVE to apply it if you don't want to. The fact that, in some legal systems, it may not be possible to apply it in some or all situations, simply means that you have what you are given, and you may not use it in ways that you are not allowed to by law.

          The GPL doesn't apply to you unless you want it to.

          • Don't you think this is a problem, then? (Score:4, Insightful)

            by xant ( 99438 ) on Wednesday July 02, 2003 @11:30AM (#6350021) Homepage
            If your local laws don't allow the GPL, then the only law that applies is copyright, and copyright law does not (by default) allow distribution of someone else's work. That's fine.

            What it means is that the GPL is really brittle. Anywhere that any clause of the GPL is invalid, GPL code cannot be distributed. In this specific case, it means that e.g. Linux install parties are illegal in Germany.

    • Re:Translation (Score:2, Interesting)

      by Anonymous Coward
      Developers may be held liable if software does not work as expected

      So this guy is saying that the 'ABSOLUTELY NO WARRANTY' part has no effect in Germany? Gee, I bet that affects way more than just GPLed stuff if true.

      Thanks for the translation work, by the way.

      • Re:Translation (Score:5, Interesting)

        by BlueWonder ( 130989 ) on Wednesday July 02, 2003 @06:48AM (#6347831)
        So this guy is saying that the 'ABSOLUTELY NO WARRANTY' part has no effect in Germany?

        If you give something away without compensation, your liability is very limited under German law, anyway. In particular, you can only be held liable in case of gross negligence or premeditation. So, for software authors who just offer their software for download, this is not a problem.

        People who sell open source/free software (either written by themselves or someone else) might be held liable to a certain extent. In that, they're no different from people who sell propietary software.

        • Re:Translation (Score:3, Insightful)

          by Moraelin ( 679338 )
          IANAL, but so basically it means: in Germany the idea is that the consumer has some inalienable rights. (Incidentally they also insist that employees have some inalienable rights, and are not at the mercy of the employer.)

          I.e., it may come as a shock to some people from the USA, where the idea is that big corporations make the law and the common man must bend over and pull down the pants whenever some billion dollar company says so... but in Germany, and some other places in Europe, politicians still do so

    • Re:Translation (Score:5, Insightful)

      by Sique ( 173459 ) on Wednesday July 02, 2003 @06:27AM (#6347747) Homepage
      Spindler spots jurisdictional uncertainties for all parties involved: Developers may be held liable if software does not work as expected, even if they only participated marginally in the development, rather than being a lead developer. Employers could walk on thin ice if they pay employees for writing Open Source Software. And buyers of such software must be prepared that liability is limited to the criteria common for items given away for free, i.e. severe negligence only.

      But the same is valid for all commercial software in Germany too. EULAs have repeatedly been denied validity because of the german contract law. EULAs are a contract between you and the author of the software. But because you didn't buy the software directly from the author, but from a third party (the reseller, the company bundling the software with a computer etc.pp.), EULAs can't be enforced. All the author can impose on you is the priviledges he gains from the Author's Right (Urheberrecht).

      This makes software under GPL in no way different than any commercial software you buy in Germany from a liability point of view.
      • This makes software under GPL in no way different than any commercial software you buy in Germany from a liability point of view.

        If there is no contract between the author and the end user, how can the author be liable at all for the performance of the software?

        And even if there were some kind of implicit liability, what would it be for? Open source software generally doesn't promise that it will perform any function in particular, so if it destroys someone's computer or data, well, that's just too bad.

    • Re:Translation (Score:3, Interesting)

      by Chalst ( 57653 )
      How is the developer supposed to be liable for software not working as expected when typically there is no legal relationship whatsoever between developer and user that might be said to be the basis for these expectations?

      There are problems wityh the liability exemption in any case. I don't suppose anyone would think that a virus writer could avoid liability for damages by making GPLing their creation, so there have to be *some* limits.

    • Re:Translation (Score:4, Insightful)

      by pubjames ( 468013 ) on Wednesday July 02, 2003 @07:16AM (#6347953)
      I think I've spotted some uncertainties myself:

      Developers may be held liable if software does not work as expected, even if they only participated marginally in the development

      followed by:

      And buyers of such software must be prepared that liability is limited to the criteria common for items given away for free, i.e. severe negligence only.

      These cannot both be true i.e. it cannot be that OSS developers are liable and yet buyers cannot hold anyone liable.

      I think the guy is just trying to point out as many possible legal holes as possible. This is what lawyers do. Put any contract in front of a lawyer and they'll find holes it in. If they couldn't they'd be out of a job.

    • " And buyers of such software must be prepared that liability is limited to the criteria common for items given away for free, i.e. severe negligence only."

      And he's talking about Open Source here?? Has Joe ServicePack ever received anything from 'the company where his money ultimately reached' (I don't use seller, vendor, OEM etc. - I know MS dodges behind these things).

      So why should JoeServicePack bother at all whether his s/w is Open Source or Closed Source? Do proprietary s/w makers offer any decent su
    • Ok So I decided to read the X pages in German legal speak. (Was bored ;) )

      What did it say? Basically it did ask who was liable and who was not liable? From what I gathered, their reasoning is that just because the GPL exists it cannot bypass general AGB rights. AGB rights are general business conditions. Basically AGB says that if you sell me something buggy I have a right to bitch.

      Ok first sure GPL has to deal with the AGB, but what about EULA's? Granted the article does not harp on this it could
    • I am not a German lawyer but have some idea of my rights as I live there. Under German and EU law, the *vendor* is liable for problems in any software sold. The vendor has recorse against the supplier and then against the developer when the software has been paid for. If at some point the software wasn't sold, i.e., an LGPL package, then there is *no* corresponding obligation on the next level of the chain.

  • good babel quotes (Score:5, Funny)

    by I Want GNU! ( 556631 ) on Wednesday July 02, 2003 @06:20AM (#6347718) Homepage
    I don't generally understand long, complex, legal arguments in German, but the astounding Fish translates it perfectly. Here are a couple quotes:

    "Employers could go on thin ice, if they pay coworkers for the letter of open SOURCE often commodity."

    "Even if one can argue perhaps over or other detail the study, then she calls many problems nevertheless with the name."
    • The Heise article talks about open source in general for the most part... The bigest concern is the no-warranty clauses in most licenses. Under German law people who distribute software under these licenses might be liable for failure to some extent.
      The article mentions the GPL only at the end and basicly doesn't say anything about it at all...
      Actually the claims are just as bad against closed-source as well. Every EULA I have ever read had some 'no-warranty' clause somewhere in it.

      Jeroen
      • Are you admiting to reading all of those long messages when you install your software?
        • No, I don't install that kind of software...
          However I have seen some EULAs and come accross systems that did have it installed and some programs display these kind of things also in their splash screens.
          It is always fun to be able to tell somebody they basicly promised their first born to a software company when in an Open vs. Closed discussion :)

          Jeroen

    • Re:good babel quotes (Score:4, Funny)

      by Zayin ( 91850 ) on Wednesday July 02, 2003 @06:30AM (#6347753)

      Don't worry, the comments below the main text clarifies it a lot:

      If thus a damage to a right property third developed , CAN the user cling, if he uses scrap iron and that does not wait. And the manufacturer CAN cling, because he that produced. And/or both beside in vein etc..

  • finally (Score:4, Funny)

    by Anonymous Coward on Wednesday July 02, 2003 @06:20AM (#6347721)
    ...a reason to learn German. And finally a real reason to post b4 reading the FA.
    • and finally something to use my university-mandated foreign language classes for! Other than ordering Viener Schnitzel and spatzel, that is...

  • babelfish translation (Score:5, Funny)

    by Anonymous Coward on Wednesday July 02, 2003 @06:22AM (#6347727)
    ACHTUNG!!!
    Das machine is nicht fur gefingerpoken und mittengrabben. Ist easy
    schnappen der springenwerk, blowenfusen und corkenpoppen mit
    spitzensparken. Ist nicht fur gewerken by das dummkopfen. Das
    rubbernecken sightseeren keepen hands in das pockets. Relaxen und vatch
    das blinkenlights!!!


    ehh.. I think babelfish has been on the crack pipe again

  • Translation of page 2 of the study (Score:5, Interesting)

    by BlueWonder ( 130989 ) on Wednesday July 02, 2003 @06:27AM (#6347748)

    im Auftrag des Verbandes der Softwareindustrie Deutschlands e.V. (VSI) means that the study was paid for by the German association of proprietary software makers.

    • Re:Translation of page 2 of the study (Score:5, Insightful)

      by slimme ( 84675 ) on Wednesday July 02, 2003 @06:48AM (#6347832)
      If you give a lawyer (or a professor) the task to examine a contract and make a list of all possible weak spots in the contract, he (or she) will do so. Of course this lawyer might find very strong elements, but he (or she) is not being paid to list them ;)

      So here you got a list with all things that might go wrong with the GPL in Germany. The same thing could be done with any contract (most contracts are dubious and open for interpretation).

      You should thank the opposition (VSI) for giving their money to investigate your contract. Read it wisely and improve where necessary.

      • You should thank the opposition (VSI) for giving their money to investigate your contract. Read it wisely and improve where necessary.

        This study is so self-contradictory that I can hardly see any use beyond spreading FUD. For example, two major conclusions are:

        • Open source software is bad for authors, because they might be held liable.
        • Open source software is bad for users, because they cannot hold anybody liable.

        Yes, a court might decide that someone who sells (as opposed to: gives away without compensa

  • Next study (Score:3, Interesting)

    by Ricin ( 236107 ) on Wednesday July 02, 2003 @06:31AM (#6347757)
    will be about the EULA and whether it can be legally enforced I'd reckon. Then compare that with other software licences like (L)GPL, BSD, ... That would be something meaningful.

    Otherwise this is merely FUD.

  • that doesn't make much sense (Score:5, Insightful)

    by 73939133 ( 676561 ) on Wednesday July 02, 2003 @06:32AM (#6347764)
    The article says that even minor contributors to an open source software project might incur substantial liability if the software doesn't perform correctly, employers might be liable if they permit their employees to develop open source software, and yet users of open source software might not be able to get much protection if the software malfunctions. The whole thing sounds like scare tactics to me.

    This is not surprising, since the study was commissioned by the VSI, an alliance of closed source software development companies, whose members are the usual suspects: Microsoft, Sun, Autodesk, and others. I suspect that if the BSA commissioned something similar in the US, they could find a "legal expert" giving the same kind of opinion.

    In any case, if this really is the legal situation in Germany (or any other nation), the logical next step is to fix the laws. There is no reason to leave any legal uncertainty around BSD or GPL-like licenses: they are clearly one valuable and valid way of licensing software, and they are an important component of a free market in software.
    • Does the article say how the GPL differs from an EULA in this regard? In other words, what is it about the GPL which means that the authors might be liable when they are not if their work is released under an EULA?

    • Re:that doesn't make much sense (Score:5, Informative)

      by SmallFurryCreature ( 593017 ) on Wednesday July 02, 2003 @06:43AM (#6347812) Journal
      Well, the whole things smells of FUD anyway. Since when are software makers liable for damages anyway? I can think only of virus writers who are held accountable for the actions of the code they written. Oh and that poor guy who made DeCCS(?).

      If you buy and run product X be it linux/windows/aix/????? and it destoys youre data, sleeps with youre cat and sets fire to youre wife then though luck. Sure some special contracts exist wich rememdy this but these are little more then extremely expensive insurance policies such as you could buy from any insurance agency.

      But the VSI can't really be blamed for this FUD. Suse is right there in germany stealing their contracts. Damn commies must be stopped or else what did they tear down the wall for!!!! :)

      Really europe makes some extremely dence laws, netherlands introduced a .5 to 1 euro tax on dvd recordables, but opensource here is pretty hot. Well compared to the us goverment. Anything to stick it to the yanks!

      • Really europe makes some extremely dence laws, netherlands introduced a .5 to 1 euro tax on dvd recordables, but opensource here is pretty hot. Well compared to the us goverment. Anything to stick it to the yanks!

        It's not clear to me that there is that much of a difference. The US has the DMCA and COPA, plus police confiscations of computer equipment without a trial. German courts stopped SCO's slander with a restraining order. And European antitrust efforts seem a bit more on the ball. On the other ha

  • Hourra! (Score:5, Funny)

    by borgdows ( 599861 ) on Wednesday July 02, 2003 @06:34AM (#6347773)
    It's long, it's complex and it's in German and it's written by a professor, so don't expect to understand anything, if you are not a German lawyer

    I AM a German lawyer and it is the FIRST article I have understood on Slashdot!

    • Re:Hourra! (Score:3, Funny)

      by Noryungi ( 70322 )
      You forgot to add the canonical ending:

      I AM a German lawyer and it is the FIRST article I have understood on Slashdot!

      you insensitive clod!

      Please try to post properly, this is Slashdot, you know.

  • shold be a problem in brazil too... (Score:5, Interesting)

    by protomala ( 551662 ) on Wednesday July 02, 2003 @06:34AM (#6347774) Homepage
    It's just a matter that the laws where not made to allow such a thing, not that the country is against the license (and I belive this is the case in Germany). For what a friend told me (he participated of a law-software-class), in Brazil you can't give away a software you made, there isn't such a thing as a company owning code in Brazil, only the people who created a software own it and can't simply say: "ok, it's not mine anymore". How this work with derivative work is a questions I have no answer, but I belive that most contries will have on one or another way problems with GPL. This dosen't mean that a judge can accept the license, just that the law by itself wasn't made with GPL in mind.
    • When you GPL something, you do not give it away.
      You publish it. You retain copyright, but you grant others a distribution licence.
      If what you are saying is true, it would not be possible to publish information of any kind in Brazil. It may not be possible to put information in the public domain. This has nothing to do with the GPL.

      In fact, when I was in Brazil there were a great many publications on sale, split 50/50 between porn ( Brazillian women are *so* hot) and normal stuff.... quite a lot of Linux st

  • WARNING: THIS STUDY IS F.U.D. !!!! (Score:5, Interesting)

    by quigonn ( 80360 ) on Wednesday July 02, 2003 @06:37AM (#6347783) Homepage
    The study mentioned in the Heise article was commisioned by VSI ("Verband der deutschen Softwareindustrie", roughly translated "association of the german software industry"), and the VSI chairman is also the CEO of Microsoft Germany.
  • of this analysis and you realize that this Professor has either never read the GPL or did not understand it (probably on purpose). He talks about how the GPL requires you to distribute software for free.
    All other concerns are about liability which creates the same problems for proprietary software with their more than restrictive EULA.

    This obviously an elaborate piece of FUD funded by a proprietary software association headed by Microsoft.
  • Guess SCO would be seething to get back at LinuxTag for kicking them in the butt (what's the German word for butt??). If GPL itself is dubious in Germany, maybe SCO could again attack Linux, this time with different flavor of FUD?

    BTW, does anyone know if the MS EULAs are enforcable in Germany? I guess any Legal System would laugh them out of court.

  • The responsibility for the product? (Score:5, Interesting)

    by kompiluj ( 677438 ) on Wednesday July 02, 2003 @06:40AM (#6347802)
    As I have skimmed through the professor's analysis (exactly 64 pages, not 100) I have noticed one single important point he tries to make: you cannot depend on OSS in case of some damage. The OSS (L)GPL goes against the german law voiding the guarantee of compensating damages. But what the hell guarantee you have using prioprietary software? Has anyone been compensated for loss due to Windows misbehaviour or, say, Oracle DB bug?
    The conclusion from this study IMHO is that generally software providers should compensate damages that software bugs cause, it should not only be the problem of the Open Source Community. From that point of view commercial licences are equally flawed.

  • Follow the money (Score:2, Interesting)

    by Anonymous Coward
    The title page of this study invalidates its conclusions:

    "Commissioned by the Association of the Software Industry
    in Germany" -- they paid for it, they get to decide the
    conclusions.

    So it's FUD, in short.
  • There is an attempt [uvm.nrw.de] to "translate" Free/Open licenses into German.

    Maybe someone with knowledge in US and German law can comment on those alternatives from "Kompetenznetzwerk Universitätsverbund MultiMedia NRW"?

  • What's the worst that can happen if the GPL is held legally unenforceable?? Companies like MS can steal GNU / Linux code and put it in their kernels? When none can access their sources, it's gonna be tough enforcing the GPL anyways.

    A new Linux distro that doesn't provide source? Fine. How many would buy such a thing? How many would pay money to buy a browser now?

    A new h/w design / spec that builds on top of Linux, but source not provided. That could be a worry. Wonder if people would flock to buy such a h

  • IANAL but I'm German (Score:4, Informative)

    by Advocadus Diaboli ( 323784 ) on Wednesday July 02, 2003 @06:52AM (#6347844)
    and besides the fact that this study is just a big piece of FUD sponsored by the VSI (which is practically equal to Microsoft) you should know that also the EULA is invalid according to the german laws.

    The only problem is that justice is not a matter of laws and "being right" anymore, actually (thanks to the lawyers) its more a matter of money. And sadly money is the resource that Microsoft has in big ammounts.

  • How is an open-source developer liable? (Score:3, Insightful)

    by BenjyD ( 316700 ) on Wednesday July 02, 2003 @06:54AM (#6347856)

    I'm a little unsure of the details of this (~9 years since I last read any German, so I didn't even try).
    But they talk about liability and GPL software *customers*. Since when are people who donwload a GPLed project customers? If you get linux from IBM, say, then you're an IBM customer and IBM shouldn't release products without checking and testing all the code they're selling. But going from that to holding contributing developers liable is ridiculous (even if it is German law).

    "This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY"

    • Well just because something is written down does not make it legal or valid.

      Take in example a contract about slavery. You can write down anything in there, it's just not valid. Contracts about drugs, etc. etc.

      Same goes about warrenty. In example in germany the consumer protection law forbids companies to resign themself from warrenty. (However this only applies to company - consumer contracts, in their application field). private person to private person can buy/sell things excluiding warranty, and compa
  • An article in which people really CAN'T read it before they post, so no excuses, this time! Babelfish is about as good as a strung-out german in the ghetto... Good work, Slashdot.

  • Laws change in each country (Score:3, Funny)

    by christophe ( 36267 ) * on Wednesday July 02, 2003 @07:07AM (#6347921) Journal
    ...and you'll always find one where your favorite license is not legal nor enforceable.
    The good side is that the MS'EULA may not be legal everywhere too.
    And in many years, people from Jupiter, Aldebaran or Coruscant will claim that the GPL and the EULA from MS are both non-sense according to their legal system ("what's this 'intellectual property' crap??!!" will they ask). If they have one.
    (The reverse may be true: the Generous Telepathic License from Pluto is probably not legal on Earth.)

  • interesting point: language (Score:5, Interesting)

    by 73939133 ( 676561 ) on Wednesday July 02, 2003 @07:21AM (#6347982)
    The paper makes an interesting point: the only official version of the GPL is in English, but contracts in Germany generally need to be in German in order to be enforceable.

    That may not matter for US projects put under the GPL and downloaded from US sites, where US law might apply even to German users. But it does matter for GPL'ed software re-distributed within Germany, and in particular for GPL'ed software created inside Germany (KDE?).

    VSI intended this study to be a vehicle for putting down free and open source software. But the money they spent on it (it probably wasn't cheap) may actually help German free software efforts sharpening up any legal loose ends. Maybe one should get the BSA and Microsoft to invest in a similar effort in the US--it saves legal expenses for organizations like the FSF.
    • sharpening up any legal loose ends

      Talk about mixed metaphors. I hope they'll tighten them up; sharpened loose ends sound even more dangerous than ordinary loose ends :-)

    • The paper makes an interesting point: the only official version of the GPL is in English, but contracts in Germany generally need to be in German in order to be enforceable.

      Well, yes and no. Two parties can agree to a contract in whatever way they like, as long as both parties understand the contract. However if you use standard form contracts (i.e. contracts not individually negotiated by the parties) when doing business with consumers, there are some quite strict regulations, and one of them is that th

  • If they can't abide by the provisions of the GPL, then Germans have no License to use software that is licensed exclusively under the GPL. Too bad for them.

    I assume the copyrights still hold in Germany.

  • Raising the GPL as "exposing companies to legal risks" is playing games with concepts. The GPL defines what can and can't be done with software written under that license. It does not, and cannot, define commercial conditions and liabilities for using the software. This is firstly a matter for national legal systems, and secondly a matter for contracts between parties.

    Let us imagine for a second that this is actually a fault in the GPL. Now, what about public domain software (not GPL), such as software freely provided by computer manufacturers, or by individuals or groups. Exactly the same issues apply: writing such software can expose the programmer and company to liability, and using such software means you have to accept that no-one is liable.

    Now how about commercial software. Is this any different? No, it can be criticised for exactly the same reasons.

    So, it's clear that the so-called study is a misdirection. The GPL is about ownership and freedom, the study is about legal liabilities. No matter who owns the software, the legal liabilities remain shared between the author and the user, as defined by contracts and legislation.

    That the study was paid for by a group representing commercial software vendors suggests that the deep pockets of interested parties lie behind it. Why Frankfurt, Germany? Because Germany is at the fore-front of the OSS revolution. (Note that my company has been distributing OSS products since 1997 and a steady 9-10% of all downloads have been from Germany, against 40-50% from the USA and 30-40% from the rest of the world).

    The study is bunkum and can be dismissed easily, since taken to its logical conclusion, no-one should write software at all, and no company should use any product whatsoever if they are not able and willing to sue the person making it.

  • Summary starts on p. 104 (Score:5, Informative)

    by Get Behind the Mule ( 61986 ) on Wednesday July 02, 2003 @07:57AM (#6348118)
    If you can read German (and this is heavily legal German, the hardest kind of language to work through), you might want to start with the three-page summary on page 104, rather than plow through all 100+ pages.

    I don't have a lot of time, but here's my first impression. IANAL, etc., etc. The summary raises three categories of legal problems, involving (1) the copyright holder, (2) contract law, and (3) liability. Actually, it seems to me that everything boils down to the issue of liabiliy: who has to pay if the software is defective in some way. Identifying the copyright holder and clarifying the contract are all means to the end of deciding who has to pay up. Incidentally, the text occasionally mentions open source software in general, but it appears that the only license analyzed in detail is the GPL (at least in the summary).

    The section about the copyright holder strikes me as a tremendous struggle with what should be an easy question. Prof. Spindler or whatever says that since so many people may have contributed to the development of GPL'd software, in so many different countries, there may be huge problems identifying the copyright holder. This is the longest and most complicated part of the summary, and I'm not into working it all through right now, especially since I don't see the problem. Isn't this a moot issue with the GPL, since there is always exactly one copyright holder, regardless of who else contributed? That is, if the distributor of GPL'd software elects to include someone else's contribution, they nevertheless distribute it under their own copyright?

    There are other issues in this section: if a company pays employees to contribute to GPL'd software, they might not be able to let the company be the copyright holder, because they do it for money, and the GPL allegedly says you can only do this free of charge. (Is that right?) It also raises the problem that the GPL as a business contract (one business allows another to use software under the conditions of the GPL) may be problematic since it's only in English. And that it is difficult to know when the GPL applies to new development, since the criteria for determining whether one software is derivative of another are unclear.

    The second part contains what I think is the most critical claim: That the exclusion of warranty and liability in GPL sections 11 and 12 is not valid under German law. Open source software is legally regarded as a gift, and even for gifts, German law requires certain minimal standards of consumer protection, for example against deliberate or gravely negligent defects.

    And so in the third section, Prof. Spindler claims that there are liability issues related to open source software, for the aforementioned cases of deliberate or gravely negligent failures of the software. He specifically mentions that distributors may be liable for viruses distributed in the software. Also, third-party-users may have stronger liability claims if they suffer damages caused by GPL'd software. For example, if a provider uses GPL'd software that is used in turn by its customers, and the software has some kind of defect that harms the customers, then the provider itself may be limited with respect to liability claims against the software authors, but the customers might be able to make stronger claims against the provider. "Download centers" or software distributors (such as SuSE, I guess) may be liable for distributing defective open source software. And if a provider or distributor does not hire support or consultants to help them ensure that the software is not defective, they may be exposed to liability claims because they were insufficiently diligent.

    As I said, this summary reflects a superficial read-through and I'd be surprised if I've really understood it all. Hope it helps, but don't sue me if my summary/translation is defective. %^)

    • Isn't this a moot issue with the GPL, since there is always exactly one copyright holder, regardless of who else contributed? That is, if the distributor of GPL'd software elects to include someone else's contribution, they nevertheless distribute it under their own copyright?

      It may be that some projects specifically require contributors to assign copyright to a primary point, this is not usually the case. Usually, every contributor holds copyright on the code he submitted.

      As a side effect, by the way, t

  • Other problems with GPL vs. german law (Score:5, Interesting)

    by __past__ ( 542467 ) on Wednesday July 02, 2003 @07:59AM (#6348128)
    One thing that hasn't been mentioned yet:

    As far as I understand, german "Urheberrecht" (not quite the same as copyright, more like "author's right") is basically inalienable. You can't just give away or sell your rights.

    One consequence of this is that germans cannot put their software or whatever in the public domain (well, they can, but it would involve dying, and even then it takes some years). Another thing I wonder about is the FSF policy of only accepting patches when the author transfers copyright to the FSF (fun question: why is the GPL not good enough for them?). A german developer cannot meaningfully do that. How can they accept contributions from german developers?

    • As far as I understand, german "Urheberrecht" (not quite the same as copyright, more like "author's right") is basically inalienable. You can't just give away or sell your rights.

      One consequence of this is that germans cannot put their software or whatever in the public domain

      How is this a problem with the GPL?

      One consequence of this is that germans cannot put their software or whatever in the public domain (well, they can, but it would involve dying, and even then it takes some years). Another t

    • Another thing I wonder about is the FSF policy of only accepting patches when the author transfers copyright to the FSF (fun question: why is the GPL not good enough for them?).

      Because they want to be able to sue for copyright infringement if someone else violates the GPL. If they own the whole copyright to the whole code, it makes the lawsuit simpler and more painful for the opposition.

  • Standard legal procedure (Score:4, Funny)

    by panurge ( 573432 ) on Wednesday July 02, 2003 @08:07AM (#6348159)
    It's not just Germany. My father was a corporate lawyer. Whenever he was asked for an opinion on litigation he would normally reply that there was a 50% chance of success. So he was told to get an opinion from an external law firm. Who would charge $tens of thousands and reply that the case was very complicated, that (wodges of paper), that the company had basically a reasonable case but (more paper) and so had a 50% chance of success. In the end he used to say "just give me the money now and I'll tell you again you have a 50% chance."

    The opinion of one lawyer is worth precisely nothing, unless he's the judge and you haven't got enough money to escalate to a higher court.

  • Short summary (Score:3, Insightful)

    by theolein ( 316044 ) on Wednesday July 02, 2003 @09:15AM (#6348648) Journal
    I have just read the conclusions at the end of the PDF and have the following comments to make although I'm not a lawyer.

    Almost the whole basis of this professors's doubt about the GPL and the LGPL are based on doubts over legal responsibilities (The German word is "Haftung") i.e. who can you sue if your OpenOffice crashes and ruins your document. He makes some vaild points (the only ones I can make out as far as I can see) about the fact that under German law you cannot disclaim legal responsibility for a product you "sell" or provide in the market. He tries to claim that anyone involved in an GPL'ed software can be made responsible for the workings of the software.

    What the good professor doesn't mention, but many other people on the Heise forums do mention, is that Microsoft's EULAa suffer from this exact problem in that the EULAs try to free Microsoft from any legal culpability as to the workings of it's software.

    I personally think that the GPL should be proven in court. It should be so that it can finally be taken seriously by governments and Professors who get funded by Microsoft (This was indirectly funded by Microsoft) to undermine the GPL.

  • Misleading summary (Score:3, Informative)

    by tlk nnr ( 449342 ) on Wednesday July 02, 2003 @12:15PM (#6350502) Homepage
    The main part of the GPL is valid in Germany: The rule that any derived work must be placed under GPL. [D II 2. e (2) (a), page 47].
    It's safe to assume that this part works worldwide: the right to create a derived work is an exclusive right of the copyright holder, and he can grant that right only if arbitrary conditions are met.

    One problem is the no-warrenty clause - such clauses are invalid under some circumstances, for example when the loss if life was caused. I've seen open source software from US companies with an explicit line that use for medical application or life support is not permitted - perhaps there are similar dangers in the US.

    Everything else is legalese - which type of contract is the GPL, who are the parties in the contract [does the user have a contract with all authors together, or with each author individually, i.e. thousands of seperate contracts, etc.]? Is an English contract enforcable?

    One interesting point is that if someone violates the GPL, then it might be difficult to sue for damages: It may be necessary to name all coauthors for such a lawsuit. But since an individual author can ask for a restraining order, which is sufficient to enforce the GPL, this is not a critical problem.

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