GPL May Not Work In German Legal System

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."

Comments

Slam SCO, now GPL?

[Anonymous Coward]

German courts are playing both sides, now?

Re:Slam SCO, now GPL?

[Stephan Schulz]

German courts are playing both sides, now?

Well, first of all I hope that German courts (indead, all courts) decide cases based on their merits and current law, not on wether they like one side better. It's the task of the legislative power to make laws that prefer the side we like better ;-).

Secondly, no court was involved, but a German Professor of Law wrote a study.

And thirdly, the study was commissioned by a trade association of proprietary software companies -- what do you expect? Even without suspecting the author of willful misinterpretation, you can be sure that the sponsor carefully picked somebody who shared their vision or something to that effect.

Re:Slam SCO, now GPL?

[Anonymous Coward]

That pdf is a troll! I'd read the summary at the end and he's so desperate in finding strange legal situations where the GPL copuld/might fail.

Something like this pdf for M$' EULA would have been modded down as troll by all the (paid) M$ fanboys here.

Re:Slam SCO, now GPL?

[RVT]

Just reading the first paragraphs of the Heise article tells the story. This was a privately comissioned study by a hand picked German law professor by a software trade association.
Hardly independent.
The second paragraph is really funny. It claims potentially huge liability for developers in case of bad software AND very limited ability to sue for users in the same case. The fact that the software is a 'gift' limits liability under German law.
Am I the only one noticing a contradiction?
Can you say FUD?

Re:Slam SCO, now GPL?

[josh crawley]

IANAGL, but I think the point is that a lot of free software has no corporate backing; e.g. the author's are just a bunch of random guys who you might or might not be able to track down or sue. This is the case where users have no recourse.

On the other hand, if your corporation writes some new piece of free software which is contributed to by the public, or which incorporates pre-existing free code, you might be liable for that code which you had no control over; e.g. if there are deliberate backdoors.

No doubt there's FUD involved, but that doesn't mean that there's a grain of truth.

Re:Slam SCO, now GPL?

[dirkx]

In germany (and in fact in most countries visited by Napoleon) the broad 'as-is' disclaimer generally is quite an issue.

In the US it is very normal that two 'grown up' parties agree to something fair reaching; such as waiving certain rights or liabilties with respect of each other.

In most of (continental) europe that is not quite so easy; and the contract or agreemnt which two parties may have with each other may simply be overclassed by national law or 'common sense' in that respect.

The national law dictates that there are certain minimal levels and that disowning it all is simply not an option.

So regardless of what the developer (dis)claims with respect to warranty; the court may well held him liable to a certain extend.

At the same time, there is also a bright side; those liabilities are generally much more limited and 'capped' than in the US; and hardly ever exceed a small multiple of the resonable sum/economic value of the good (and not what can be done with that good). And they also put very reasonable demands on the 'user'. Willy nilly risking 5 million of lost production on a bit of untested free software is not going to ring true with the judge. He expects (more) resonable caution than generally in the US.

Also note that the scope of damages is very propotional to the purchace/gains of the developer/transaction. Sor 'free' (as in gratis') software those amounts are obviously not going to be very large.

Except if there is a bit more blame; i.e. someone knowingly dropping the ball. And unlike the US, where that waiver is going to help you - it may do little or nothing in most of Europe. Whereas in the US you are fairly secure.

On the other hand - any secondary damages issues are not nearly as much of a problem in europe, and virtually unheard of. Plus bear in mind that cost recovery and legal assistance is on an entirely different level in germany compared to the US. This making the issue of frivolous lawsuits by a megacorp which cripples a small developer virtually unheard of in most of the EU.

So in short; yes - you are bit more open to exposure in Europe - but as long as you behave resonably and are not vandalizing the hight of that exposure is very limited; and proportional to your fairly direct and clear cut gains from that software. And with open source / gratis - that is not going to make you go bust.

Dw

Actually, the GPL hasn't exactly worked..

[tangent3]

for any legal system yet. It just hasn't been tested in the court. The SCO cases is supposed to be the first test, but that might not happen anyway.

Re:Actually, the GPL hasn't exactly worked..

[prockcore]

The SCO cases is supposed to be the first test, but that might not happen anyway.

No, SCO is not challenging the GPL, SCO really has little to do with linux.. it is about two things, one, a contract dispute with IBM, two, ownership of derivatives (they claim that if you write code and license it to SCO for use in SysV, then SCO owns all rights to that code and you cannot take that same code and use it elsewhere).

Re:Actually, the GPL hasn't exactly worked..

[pe1rxq]

Well it might turn out to be a gpl test.
Consider the following argument from IBM:

"We have copied code we think is ours into linux, however SCO then also distributed the same code under the GPL. If the code ever was questionable they have granted permission to use it at that moment. And thus set a precedent for more copying"

At that moment SCO would have to kill the GPL in order to have any case (or a substantial case) at all.

Jeroen

Re:Actually, the GPL hasn't exactly worked..

[hobsonchoice]

I don't know what SCO's position on the GPL is now, but according to an article today, it does sound like they want to be paid licenses by companies using GPL software (Linux), even if they didn't get it from SCO:

From: http://www.businessweek.com/magazine/content/03_27 /b3840089.htm - Next month, SCO will tell companies that use or distribute Linux, such as Red Hat Inc., that they need to buy a license, says McBride.

Re:Actually, the GPL hasn't exactly worked..

[73939133]

I don't know what SCO's position on the GPL is now, but according to an article today, it does sound like they want to be paid licenses by companies using GPL software (Linux), even if they didn't get it from SCO:

This, of course, means that they don't understand the GPL. Nobody can redistribute GPL'ed software unless it is free and clear of non-GPL'ed intellectual property. The purpose of that clause is exactly to stop this kind of situation, where a company like SCO "latches onto" a successful open source project.

So, SCO might theoretically be able to kill Linux, they might even be able to extort a little money from some current Linux users, but they can't make money from it through licensing fees in the long term.

Re:Actually, the GPL hasn't exactly worked..

[hobsonchoice]

This, of course, means that they don't understand the GPL. Nobody can redistribute GPL'ed software unless it is free and clear of non-GPL'ed intellectual property. The purpose of that clause is exactly to stop this kind of situation, where a company like SCO "latches onto" a successful open source project.

And while that may be the intent of the GPL, who is going to stop them?

If what I've read is true - I believe that SCO are still distributing Linux from their web site (although not selling it) - and this has been the situation for a while now. While apparently one kernel developer sent them a warning type e-mail about this according to a story at www.theinquirer.net, I'm not currently aware of anybody trying to enforce contract or copyright rights (that they might have on GPL software) against SCO.

Re:Actually, the GPL hasn't exactly worked..

[tony_gardner]

I don't understand this logic. Lets say I work for a company making widget subcomponents. I also retail widgets made by a range of companies. One of those companies stole one of my widget subcomponents and without my knowledge incorporated it into their widget, which was subsequently retailed by my company.

How exactly is the retail of the dodgy widget an excuse for the thief?

Re:Actually, the GPL hasn't exactly worked..

[73939133]

And while that may be the intent of the GPL, who is going to stop them? If what I've read is true - I believe that SCO are still distributing Linux from their web site

Not only does SCO have to stop redistributing Linux, so do RedHat, Debian, SuSE, and IBM.

However, the situation hasn't arisen yet: while SCO has made a lot of noise in the PR area, they haven't yet actually demanded licensing fees or made any specific IP claims. So, so far, SCO can continue to distribute Linux, as can anybody else.

Who would sue? Any contributor to the Linux kernel can. I'm sure the FSF would be happy to support a lawsuit once it gets to that point. And I suspect the FSF would be happy to support a lawsuit even against RedHat should RedHat be foolish enough to try to pay SCO for a license.

Re:Actually, the GPL hasn't exactly worked..

[pe1rxq]

It might not be an excuse for the first theft...
But in this case it is not without SCO's knowledge...or atleast they had the opportunity to examine the source before distributing it.
By not doing it (and thus taking a risk) they forfitted the right to complain later. SCO's argument that nobody checks before shipping is nonsense. Just because everybody takes risks does not mean that they don't have to face the consequences of their actions.

Once the first 'widget' gets through the offending company might use your apparent approval as a sign for subsequent 'theft'.
In the case of IBM vs SCO not even the theft has been proven...

Jeroen

Re:Actually, the GPL hasn't exactly worked..

[Gherald]

"Forget Linux!" says the FSF, "by the time all the lawsuits finish we'll have HURD!!!"

1. Abandon Linux in its moment of need
2. Devlope a fully GNU alternative
4. ???
5. Philosophize!

Re:Actually, the GPL hasn't exactly worked..

[jodo]

Your's is a good analogy. But SCO distributed Linux under the GPL. They knowingly participated in this arrangement for years. The code was open for all to see. Right?
Let's say SCO writes a song. I write a new verse and new vamp for the song. It's a hit. We go on tour together. SCO and I perform the song for years on tour. We sell concert cd's of the song with my verse and music included to our adoring fans. We make money. Suddenly (overtaken by an evil spirit) SCO says, "it's all mine now." Pay me! Or don't sing the song.
In the end, I think it was SCO's responsibilty to know what they were doing with the GPL.

Re:Actually, the GPL hasn't exactly worked..

[Jaysyn]

Did you notice this quote in the Businessweek article?

'SCO President Darl C. McBride says he'd consider replacement of the code, but warns it might not be practical: "When you find out how much code is infringing -- the amount is gargantuan -- it'd be a major challenge."'

Now when this was brought up earlier; wasn't the amount only like 60 lines of code or something? Or am I way off?

Jaysyn

Re:Actually, the GPL hasn't exactly worked..

[hobsonchoice]

I've read in various places: it's hundreds, thousands or even hundreds of thousands.

The articles that I've seen by people who signed the NDA, suggest all they saw is about 80 lines. Of course, that doesn't mean there couldn't be more than 80 lines in dispute.

I guess how many lines you count, might depend on:
(a) what you're referring to (disputed code or common code)
and (b) whether you count the things which SCO didn't (as far as I know) claim to have developed, but which IBM contributed to Linux, and SCO seems to claim derivative rights on based on the claim they were in AIX before being in Linux.

Re:Actually, the GPL hasn't exactly worked..

[Anonymous Coward]

It's ridiculous regardless of the number of lines involved anyway. If necessary the whole kernel is replaceable, it mitght be painful but it's certainly doable. How much could possibly be too much to be practical? If there really is SCO code in there it's legally impermissible to leave it there unless SCO GPL it. Practicality doesn't really come into it.

Re:Actually, the GPL hasn't exactly worked..

[schon]

One of those companies stole one of my widget subcomponents and without my knowledge incorporated it into their widget, which was subsequently retailed by my company.

You didn't finish your (very poor) analogy..

If you discover the subcomponent, then refuse to tell them what it is, and continue selling your 'product' - WITH FULL KNOWLEDGE, and your contract with them states that THIS IS OK, then you don't have a legal leg to stand on - it's not "theft", because you are saying that it's OK.

Re:Actually, the GPL hasn't exactly worked..

[tony_gardner]

The code was open for all to see:
in the cellar
with no lights
or stairs
in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard".'"

How many million lines of code does an ordinary linux distribution have now? Claiming it was open is like expecting each and every customer to read every page of a 70 page EULA. Nice in theory. Not practible.

Re:Actually, the GPL hasn't exactly worked..

[tony_gardner]

Yeah, the analogy sucked. But the point was that simple reselling doesn't constitute approval. I think that this is enormously important because it potentially highlights a huge drawback for businesses who want to use GPLed software. If they can't take back the accidental GPLing of something when they discover it, then it greatly increases the danger of the GPL to business, regardless of its other advantages.

What if they did stop selling the software? Then they have no income while the legal mills slowly grind, leaving a non-legal win option for IBM. IANAL, but I think that you'd find a good argument that the decision as to whether to sell the software or not should be made at the close, not at the beginning of the suit, since it can be that they lose the suit, in which case they didn't have to stop selling the software. A very nice catch-22, which we'd be wining about if it was RedHat vs Microsoft.

Re:Actually, the GPL hasn't exactly worked..

[tony_gardner]

So you're claiming that by not reading a 70 page EULA and agreeing in good faith, that you can agree to sell your first born child?

I think that this is a another point hanging on the legal definition of "reasonable".

Re:Actually, the GPL hasn't exactly worked..

[ajs318]

..... or like expecting each and every customer to back up their entire hard drive before installing a piece of software?

Re:Actually, the GPL hasn't exactly worked..

[pe1rxq]

Selling you child was a joke....
But you would be surprised what kind of things people agree to without hesitation.
Things like giving the software publisher full access to your systems and such....
Or that your license can be revoked at any time.

Jeroen

Re:Actually, the GPL hasn't exactly worked..

[Zeriel]

I remember it's one of the ones when he's playing harmonica. I have an mp3 that goes something like
"Hey, you guys, listen to this song I just wrote! It's called 'I hate you guys'."
*blues harmonica riffs*
"I hate you guys. *harmonica* You guys are assholes. *harmonica* Especially Kenny. *harmonica* I hate him the most. Now everybody! I hate you guys. C'mon, you know the words!"

Re:Actually, the GPL hasn't exactly worked..

[arkanes]

They should stop selling the software because they're attempting to exert IP rights to it in violation of that license. There's no wiggle room here - if they know that there's code that shouldn't be under the GPL, then they need to remove that code from the GPLed code before distributing. If that code is inherent to the GPLed code and can't be trivially removed, then they've got a serious problem, need to contact the developers and other owners of the GPLed code and start working things out. Simply ignoring the license on all the other code that doesn't belong to them and continuing to resell it is immoral and probably illegal.

"Take back the accidental GPLing" is a ridiculous phrase. You can't accidently GPL something, and if you did you couldn't take it back. If someone stole code from you, and GPLed it without the right to do so, then you have a case - that's not an accidental GPLing, that's IP theft (or piracy or whatever) by whoever did it.

Re:Actually, the GPL hasn't exactly worked..

[tony_gardner]

So you're saying, if I steal your code, and put it in the Linux kernel, so that it is a vital part of the kernel. Then you form a company selling both that code, and a linux distribution. that when I tell you about the code I stole, that you immediately have no income, through my illegal action because:

a) You can't sell your original code because you don't want to open the modifications to what is now a GPLed code.
b) You can't sell the distribution any more because it's suddenly a mix of GPL and non-GPL code.

Great! Suddenly any firm can be destroyed by stealing a small section of code and GPLing it.

Now I know you're starting from the assumption that SCO is wrong, but handled wrongly, this case could destroy commercial Linux as we know it.

Re:Actually, the GPL hasn't exactly worked..

[z_gringo]

Thanks! I've been out of the loop. I can only see the ones that come out on DVD, and they lag far behind the ones that come out in the U.S..

Re:Actually, the GPL hasn't exactly worked..

[MntlChaos]

easy solution: remove your code and give the community back an all GPL version. eventually that section will be replaced. meanwhile all you have to do is IMMEDUATELY stop selling the linux distro (this is what SCO did NOT do). you can go on selling your own code just fine.

Re:Actually, the GPL hasn't exactly worked..

[arkanes]

In simple words? Yes. If said company is dependent on selling both the proprietary code and the GPL code. If you totally depend on one product for your existence, and someone steals it, you may very well go out of business. This is a common tactic used by people suing small companies.

Remeber that this would have to be a) code that the company is totally reliant on for buisness b) code usefull enough that it can be integrated into a GPL product c) the company is ALSO totally reliant on selling this GPL product and d) the code is fundamental enough that, once inserted into the GPL product it can't be removed.

I daresay you can't come up with a any reasonable scenario that covers all those situations. The SCO case doesn't, by the way.

Re:Actually, the GPL hasn't exactly worked..

[tony_gardner]

no, it has to be:
a) A small part of a code that comprises a significant part of the company's business
b) Code which has been integrated into a GPL product.
c) The company also sells a Linux distribution.
d) The code is part of the kernel, which the company can't touch, or risk becoming uncompliant with standards=no longer Linux=no longer saleable.

Which is exactly what SCO claims is their problem. Look, I don't agree with them. But if I was CEO of a company considering supporting Linux, and your hardline option was really the law, I'd not support Linux. I therefore think that, while you have a point, that a softer line to the all-or-nothing GPL argument is far more likely to benefit Linux in the long run. Largely because at least some of the options we're seeing for making a profit with open source involve mixing GPL and non-GPL software. That means that we as a community need to reduce the number of irreversible mistakes a company can make when dealing with a mix of GPL and proprietry solutions.

Remember: Embrace and Extend!

Re:Actually, the GPL hasn't exactly worked..

[hobsonchoice]

How many million lines of code does an ordinary linux distribution have now? Claiming it was open is like expecting each and every customer to read every page of a 70 page EULA

As far as SCO is concerned - let's consider history of the company:

Let's assume for a moment there is SysV stuff wrongly added to Linux - purely for the purposes of debate:

1. Caldera were a public company company trading in Linux products, not even as an incidental part of the busines, but as the founding reason for the entire business. The offered consultancy on Linux. They made contributions to improving Linux. They sold their own Linux distro. They were supposed to be experts. They therefore should have known what they were doing!

I don't think that they told anybody (customers, investors, press) anything like "sorry we don't really understand this Linux thing, and haven't read the sources which we distribute".

No, for years, they gave the opposite impression - namely they understood Linux. If McBridge says it is "no-brainer" about code copying now - why was it not a no-brainer back in 2000???

2. I read somewhere they had 15 programmers working just on UnitedLinux. I can't verify this to be fact, but I don't doubt they had employees working on Linux. Did none of them notice for years? Did none of them raise it with managers for years?

If something is amiss in Linux source, why wouldn't SCO/Caldera have known a long time ago?

3. They are one of only a relative handful who could have known if anything was wrong. While other companies may have been involved in Linux and/or SysV - Caldera/SCO positioned themselves as a Linux/UNIX software company - and owned the sources for the latter. Additionally as owner of SysV codes, wouldn't they have a special responsibility?

4. Ransom Love gave a lot of interviews etc., back in 2000, about bringing Unix features to Linux, or even might be interpreted as gradually converging the two (I don't see he ever said merge). Did nobody working on this dream at SCO/Caldera - not look at the code bases - they've got both - and suddenly say - back in 2000 - "Hey Linux's already got this from Unix!"? If they didn't, they shouldn't they have? If they did, and SCO/Caldera didn't care until a couple of years later, doesn't that sound like acceptance?

Re:Actually, the GPL hasn't exactly worked..

[quantaman]

One of those companies stole one of my widget subcomponents and without my knowledge incorporated it into their widget, which was subsequently retailed by my company.

How exactly is the retail of the dodgy widget an excuse for the thief?

Well I'd have a little more faith in that argument if they weren't STILL DISTRIBUTING IT!!!

I think the fact that SCO hasn't stopped distributing the code that they know is under the GPL means they've effectively GPL'ed it regardless. That still doesn't clear up the possible issue of IBM breaking their agreement but Linux should be in the clear.

Re:Actually, the GPL hasn't exactly worked..

[azzy]

6. Prophet ?

Re:Actually, the GPL hasn't exactly worked..

[Anonymous Coward]

Since when has practicality had *anything* to do with copyright law ?

Sure a EULA is indecipherable by any average human being, that is why you hire lawyers to read it for you. Judges are lawyers, they like the fact that lawyers get paid to decipher this stuff.

Even though reading the Linux source would be viewed by the court as something a professional software engineer (rather than a lawyer) would be required to do, the court is unlikely to rule that big long gnarly pieces of indecipherable mumbo-jumbo are an excuse to invalidate a contract (in this case the GPL) since big long gnarly pieces of indecipherable mumbo-jumbo are the primary reason that the entire legal profession exists.

Re:Actually, the GPL hasn't exactly worked..

[Anonymous Coward]

To be even funnier you should have started the list with "0", like so:

0. Abandon Linux in its moment of need
1. Devlope a fully GNU alternative
2. ???
3. Philosophize!

RMS allways does that

Re:Actually, the GPL hasn't exactly worked..

[Anonymous Coward]

you released your widgit unger a (gpl) public license, as soon as you did that the other widgit company was free to use your stuff, and release it under the same public license you did? now do you see that? it does not matter who was selling what when, the crimes were commited before you release your product under the public license, not after. so i would say that the crimes fall under the seven year statute of limitations. so all they could do is pull all your old product, before the public release of the widgit.

Re:Actually, the GPL hasn't exactly worked..

[Zemran]

Or how about :-

IBM now sues SCO, claiming that it was obviously SCO that released the code into Linux (as IBM say they did not and SCO HAVE released the code in their version of Linux) after 'selling' the use of the code to IBM, thereby devalueing IBM's version. I am sure that IBM would not have paid as much for the code if they had known that it was soon to become freely available.

Re:Actually, the GPL hasn't exactly worked..

[arkanes]

In actual fact, if SCO hadn't taken the hardline stance, there probably wouldn't have been any trouble - they'd have said what the code was, it would have been removed, there would have been a communal effort to track down how it happened - there's many ways to resolve these issues without taking the hardline stance. As it happens, though, the hardline stance IS the law. The gist of this argument is about whether or not it's fair, and I think it certainly is - SCO is claiming to have known about the code for YEARS. That's simply unacceptable, in my opinion.

Re:Actually, the GPL hasn't exactly worked..

[geekee]

"Consider the following argument from IBM: "We have copied code we think is ours into linux, however SCO then also distributed the same code under the GPL. If the code ever was questionable they have granted permission to use it at that moment. And thus set a precedent for more copying" "

People post this arguement all the time. But it's flawed because SCO did NOT release their code themselves. Therefore, GPL and copyright in general were violated on the copy SCO received and distributed. So, first GPL is not valid on the copy SCO distributed. Second, unless SCO specifically put their stamp of apporval on code released by others, I doubt any court is going to say that they therefore released it to GPL.

Re:Actually, the GPL hasn't exactly worked..

[geekee]

"This, of course, means that they don't understand the GPL. Nobody can redistribute GPL'ed software unless it is free and clear of non-GPL'ed intellectual property."

Think about what you just wrote. If the code contains their IP, the GPL is invalid. Therefore, a court will rule that the GPL doesn't apply, and force company to pay SCO damages (licensing, basically).

Re:Actually, the GPL hasn't exactly worked..

[geekee]

I think their is a difference between introducing something as GPL and redistributing something as GPL. I doubt any court is going to say by redistributing, you automatically introduce code, if the code happens to be stolen from you, and is in there.

Re:Actually, the GPL hasn't exactly worked..

[Zeriel]

I truly wish I could afford South Park DVDs. Alas, my fiancee's tastes run more towards art films, and my half of the entertainment budget goes to computer parts. =P

Re:Actually, the GPL hasn't exactly worked..

[Minna Kirai]

After announcing that Linux was violating their IP, SCO continued to distribute Linux products for a while.

So they kept on agreeing to the GPL, even after they "knew" it contained their stuff.

Re:Actually, the GPL hasn't exactly worked..

[pe1rxq]

No, if you know that a program was falsely released under the GPL the GPL says you can't distribute it at all. In that case the program will fall under normal copyright and each and every owner of every single piece of code would have to give permission before you can distribute it.
By distributing it they acknowledged not only that the GPL is valid but also that the code they acquired was rightly under the GPL.

Jeroen

Re:Actually, the GPL hasn't exactly worked..

[purdue_thor]

Well I think you've struck upon a great analogy for closed source! In fact, the "Beware of the Leopard" matches very well with "Beware of the Lawyers".

I'm not trying to open a debate about which is better, but I think your analogy is going a little too far. Especially so in the light of the programs that people are writing to scan for similarities between BSD and Linux (the so-called shredding) that run in no time on an ordinary PC.

Re:Actually, the GPL hasn't exactly worked..

[civilizedINTENSITY]

But a crucial difference (in my mind) is that Redhat, Debian, SuSE, etc..., are distributing software but aren't aware of *which* lines of code aren't kosher by SCO's viewpoint. SCO is the only one who knows. And SCO is distributing under the GPL even as we type. Therefor it seems that to distribute code under the GPL that you have public claimed is tained with your IP is in fact knowingly GPLing the code. Redhat can't GPL someone else's code. Only SCO could GPL their code. And it sure looks like they are doing so.

Re:Actually, the GPL hasn't exactly worked..

[Anonymous Coward]

SCO kept distributing linux for some time after filing the law suit (and may even still have the kernel on their servers).

Re:Actually, the GPL hasn't exactly worked..

[thisgooroo]

not very likely: there are other copyright holders, and they have to get clearance from them before distributing. the non-SCO was contributed under the GPL and can't be combined with nonGPLed code

Re:Actually, the GPL hasn't exactly worked..

[tushar]

SCO can still claim they did not know the source contained their code since it is impossible to go through each line of code. So that argument may not stick.

The most imporatant fact is that even after they knew (the proper word would be believed) that the linux kernel source contained their copyrighted code, they continued to distribute it. If they did not stop the distribution of the kernel sources even after they "knew" it contained copyrighted code, how do they expect companies (who do not know about infringing code except for the informationless letters from SCO) to stop adoption of Linux.

Re:Actually, the GPL hasn't exactly worked..

[Hognoxious]

The most imporatant fact is that even after they knew (the proper word would be believed) that the linux kernel source contained their copyrighted code, they continued to distribute it.

Which amounts to tacit approval.

Re:Actually, the GPL hasn't exactly worked..

[Hognoxious]

Is that from HHGTTG?

No problem!

[jsse]

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. :)

Re:No problem!

[BetterThanCaesar]

I fail to comprehend the contents of brief, non-recondite Anglo-saxon articles, you insensitive clod!

Re:No problem!

[nutshell42]

While you pointed that out correctly you forgot the obligatory rant how the article shows the depravity of M$ and the RIAA =)

Re:No problem!

[japhmi]

I fail to comprehend the contents of brief, non-recondite Anglo-saxon articles

I don't understand any Anglo-saxon. I do know english, however. I also am learning other dead languages, but not Anglo-saxon. Do we even have anything written in true Anglo-saxon?

Re:No problem!

[Anonymous Coward]

I don't want debate with pro-MS AC anymore. Show your name so that I know you are listening.

Actually, that won't show anything of the sort...

Never mind, offtopic...

Re:No problem!

[AndrewRUK]

By "true anglo-saxon," I presume you mean Old English, the language spoken in Anglo-Saxon England prior to the Norman conquest of 1066. There's no shortage of Old English texts available, for example, the Lord's Prayer in Old English (10th century):

"fæder, u e on heofonum eardast,
geweorðad wuldres dreame. Sy inum weorcum halgad
noma nia bearnum; u eart nergend wera.
Cyme in rice wide, ond in rædfæst willa
aræred under rodores hrofe, eac on on rumre foldan.
Syle us to dæge domfæstne blæd,
hlaf userne, helpend wera,
one singalan, soðfæst meotod.
Ne læt usic costunga cnyssan to swiðe,
ac u us freodom gief, folca waldend,
from yfla gewham, a to widan feore."

(from http://www.georgetown.edu/faculty/ballc/oe/pater_n oster.html, which also has Middle English ["Oure fader that art in heuenis..."] early Modern English ["Our Father which art in heauen..."] and modern English ["Our Father, who art in heaven..."])
For other examples of Old English text, google is your friend.

Re:No problem!

[japhmi]

By "true anglo-saxon," I presume you mean Old English, the language spoken in Anglo-Saxon England prior to the Norman conquest of 1066.

Even then the language had a lot of contact with the 'native' Celtic, and had gotten a lot of words from there. I was talking about what the Anglo-Saxon prior to the migration to England (which actually would probably be two very similar dialects of the same language)

In other news

[borgdows]

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).

Re:In other news

[73939133]

Actually, I believe SCO is under a restraining order in Germany that prohibits them from making the kinds of outrageous claims about Linux that they have been making in the US.

Re:In other news

[quigonn]

This is correct. They even had to pay some kind of "penalty fee" of EUR 250000,-- two times, because they still had these claims published on their website.

Re:In other news

[Anonymous Coward]

"They even had to pay some kind of "penalty fee" of EUR 250000,-- two times,"

Any links, please...

Re:In other news

[Jonner]

Our friends at SCO must be so conflicted right now.

Re:In other news

[Anonymous Coward]

bullshit. the maximum penalty for breaching the order was 250,000 euros, according to spokesmen for Suse, who are hardly unbiased. If they did breach it, the penalty would have to be decided by a judge and would be less than that....

Here's my link, now where's yours little troll?

Re:In other news

[AlanS2002]

Just because the maximum is 250,000 euros, there is no reason that a judge wouldn't fine them that, especially if they aren't liking the FUD SCO has been smearing everywhere it can.

Re:In other news

[geekee]

"Actually, I believe SCO is under a restraining order in Germany that prohibits them from making the kinds of outrageous claims about Linux that they have been making in the US."

So much for free speech in Germany.

Re:In other news

[Rasta Prefect]

"Actually, I believe SCO is under a restraining order in Germany that prohibits them from making the kinds of outrageous claims about Linux that they have been making in the US."

So much for free speech in Germany.

Not really. The injunction was basically based on the idea that what SCO was doing was essentially libel/harassement. LinuxTAG basically got an injunction that says "Prove something or shutup". SCO did not choose to prove something.

Re:In other news

[aardvarkjoe]

I find it very hard to believe that SCO could have possibly been fined without a dozen stories going up on Slashdot. The OP is probably referring to the fact that they were threatened with fines, not that they had to pay them.

Re:In other news

[Phroggy]

Our friends at SCO must be so conflicted right now.

You have friends at SCO?

And they're still your friends?

Re:In other news

[Anonymous Coward]

You have friends at SCO?

And they're still your friends?

Friends don't let friends have friends at SCO. ;-)

Re:In other news

[Jonner]

You do realize that "my friend" and "our friends" are figures of speech, right Mr. Literal? In this case, it was facetious and ironic. It was intended to help the joke, but you know how well a joke works if it has to be explained.

Re:In other news

[Anonymous Coward]

So much for free speech in Germany.

Seems to me the Germans actually have a clue. Their legal system allows someone to say "Either prove what you're saying, or stop spreading your filthy lies". I notice SCO carries on their campaign of bullshit in the only place that allows such bullshit to continue on a daily basis (and even publicises it in the media!).

Re:In other news

[Hognoxious]

So much for free speech in Germany.

The US has truth in advertising laws.
The UK has the trade descriptions act.
You have shit for brains.

Re:In other news

[geekee]

Truth in advertizing is on the lines of breech of contract. It's not a free speech issue. It just means that if you sell something, it better do what you claim it does. Saying you can't accuse someone of something without showing the world proof is an infringement on free speech. If they want to sue you for slander, fine. But the burden of proof is on them at that point, not you. You should examine what's inside your own head before making statements like "You have shit for brains.".

Re:In other news

[Hognoxious]

It's not a free speech issue.

So why did you say "so much for free speech in Germany"? That's a rhetorical question; I already answered it - see above.

Re:In other news

[Hognoxious]

If they want to sue you for slander, fine. But the burden of proof is on them at that point, not you.

Which burden of proof? That they actually said/published the statement, or as to the truth of the statement itself? Because for the latter, at least under UK law, you're wrong once again.

Re:In other news

[Hognoxious]

Truth in advertizing is on the lines of breech of contract.

Not. First, no contract exists by the mere writing or reading of an advertisement. Secondly, trades description prosecutions are brought under under criminal law, but contract disputes are civil. Thirdly, they are brought by a government agency, not an aggrieved individual.

Translation

[Renegade Lisp]

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

[Anonymous Coward]

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

[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

[Anonymous Coward]

SCO against IBM

Don't mention the war!

Re:Translation

[Sique]

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.

Re:Translation

[snakeplissken]

indeed, and the following:
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.

seems to imply that paying for software, i.e. for proprietary code, might result in a greater liability for the software producer,
in other words, whether the (l)gpl is itself fully enforcable under german law or not; by being attached to cost-free software there is still less liability than where software is payed for.

that's a lot to infer from one short quote but i don't see much for the likes of microsoft to crow about!

there's almost a tone to the the quote that the author is complaining that there isn't enough liability! :)

Re:Translation

[73939133]

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

[BlueWonder]

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

[Chalst]

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

[FranklyMyDear]

Developers may be held liable... [...] 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.

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

Actually, I think all this is typical self-contradictory FUD. As you see above, the study basically says that Free Software is bad for developers, because they expose themselves to liability. And then it turns around and says, oh, and Free Software is bad for customers, because that liability is limited! Translation: OK, in Germany, everyone is liable to a certain extent for the software they write (we knew that), but Free Software is actually better off.

Re:Translation

[pubjames]

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.

Re:Translation

[MrRay]

The study was funded by a lobby-organisation of software companies - so what do you expect?

Re:Translation

[jkrise]

" 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 support? (not the small ones).. The legality of GPL is not a guiding factor in a buying decision for the customer, nor for the developer, coder or sponsor of OpenSource project.

Any amount of legalese around a rotten code does not make it sweet or desirable. Any amount of LipService (TM) doesn't equal actual Customer Care.

Re:Translation

[haraldm]

translate.ru (Promt based) has often proved to produce better German/English translations than Systran-based fish.

Re:Translation

[Jonner]

I believe that's the point: Free and Open Source software can't be under warranty, so if that's legally required, there is an inherent conflict.

Re:Translation

[Anonymous Coward]

Open Source has risks attached to it, for developers and users. That's obvious. What precisely those risks are isn't as obvious. For example, you can't dismiss liability issues as easily as many open source programmers think they can: Even if you give something away completely free, you are still liable for gross negligence. I think that's stupid, but that's the way it is, so you better know about it before you start giving software away. The laws in different countries have different implications for OSS developers and users. I'm sure other countries have equally stupid pitfalls which also make open source licenses less straight forward than they seem.

Re:Translation

[jkrise]

" 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

[Anonymous Coward]

You can use GPL code without accepting the license, it's only when you redistribute it that that you need the copyright holders permission. If you don't accept the legal validity of the GPL then you have no right to redistribute.

ITS NOT HARD TO UNDERSTAND!

And since any vendor/distributor can only make a contract with you under the exact terms of the GPL it is valid.

Hey - I wish I was a prof of law, and not just some bearded linux using commie!

Re:Translation

[egghat]

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

[Anonymous Coward]

Actually, I think all this is typical self-contradictory FUD. As you see above, the study basically says that Free Software is bad for developers, because they expose themselves to liability. And then it turns around and says, oh, and Free Software is bad for customers, because that liability is limited! Translation: OK, in Germany, everyone is liable to a certain extent for the software they write (we knew that), but Free Software is actually better off.

Nonsense. Here's a simple explanation for you:

For developers, producing commercial software for a company doesn't expose you personally to liability, it exposes the company. On the other hand, developing free software even if you only contributed a very minor part of that software, could open you up to liability for a severe negligence claim. Thus Free Software is Bad For Developers.

For a customer, you get certain rights if you are given software. If you are given it by a company and wish to exercise these rights (a claim for severe negligence), that's cool because it's easy to take companies to court. If you're given it by a bunch of Free Sofware developers, you're in trouble as they'll be much more difficult to track, it'll be difficult to prove they're the right developers and at the end of the day they probably won't be able to pay your settlement. So Free Software is Bad For Companies.

So: OK, in Germany, everyone is liable to a certain extent for the software they write (we knew that), but Free Software is worse off.

Re:Translation

[hughk]

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.

Re:Translation

[Random Walk]

There is a group of German lawyers who have founded IFROSS, 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

[aqfoo]

The study's conclusions are beyond logic: if developers can be sued for bugs, how come the buyers are only protected from severe negligence?? The german term for severe negligence (grobe Fahrlässigkeit) means that you are guilty only if you are aware that what you are donating is dangerous; for example: if you write a virus or other malicious software and give it away, you can be prosecuted (not sued!), but not for a honest mistake. The prosecution should prove that you either had a malicious intention or totally disregarded standard programming practice, i.e., you didn't debug your code at all. Remember that this is only a legal opinion -not ruling- written on behalf of an institution that represents mostly closed-source companies.

Re:Translation

[egghat]

Did the examine at the (possible) liability problems? IMHO that seems to be most important point in the artcile for the creators and the users of GPL based software.

Re:Translation

[Larsing]

You missed the point:

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

Developers can be held liable...

liability is limited to the criteria common for items given away for free, i.e. severe negligence only

...for causing damage through severe negligence.

Quite Easily Done ,-)

Re:Translation

[12dec0de]

So: OK, in Germany, everyone is liable to a certain extent for the software they write (we knew that), but Free Software is worse off.

Actually it is the quite the opposite. I am still reading the text, IANAL, but at least a native speaker.

Any (Software) Product is liable for damage in Germany. If you don't pay for it, then only gross negligence or premeditation counts, e.g. viruses/trojans. But the victim has to proove this. Therefore, Germany is o.k for individual developers, if they don't charge for the software. And Producers of any kind have to take care anyway.

Funny Fact: If you are selling to german end customers there are certain minimal rights as defined by the law that cannot be taken away. If a contract has clauses that take these rights away, they are null and void. That is why I am quite cool with EULAs. If they grant less than the law, the law is valid.

other interestng Tidbit I just found in the text: in germany de-compilation is legal for making individual pieces of software interoperate. While I may sign this right away as a company and probably do with the EULA, as a customer, this cannot be taken away. And as a individual developer, not making money of this, I sure as hell count as an individual customer.

Re:Translation

[12dec0de]

In cases of premeditation the case is quite clear. If they catch you writing trojans, you can be held accountable.

And the concept of 'no legal relationship' doesn't fully fly if you post something on your website and somebody else downloads it. In germany at least you have a valid contract and liability applies.

Re:Translation

[Moraelin]

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 something for the population, not just for Microsoft and IBM and the like. Maybe also because the population itself has not yet thrown in the towel and accepted that it's at the mercy of whoever is currently on top.

But either way, the idea is that Europe actually has laws, as opposed to letting the biggest bully make his own rules. Those laws dictate that as a customer (or again, as an employee) you have this and that right, and noone can bully you into accepting any less. No contract or EULA or GPL can override the _law_. If you bought something, you have the right to some warranty, for example.

That's what made it possible, for example, to override some provisions in Microsoft's own EULA. Not because it was or wasn't read by the buyer, as is usually the debate in the US courts. But because even if the buyer had fully read and understood all that, it would still have been a case of allowing one company to override the law in their contracts. It would have meant that Microsoft can effectively say "no, we don't want to obey the law." (I.e., not give the customer his legal rights.)

However, the same applies to the GPL too. If you sell some product, you have to support it and offer the legal warranty, and are liable if it does really bad stuff. Writing "ABSOLUTELY NO WARRANTY" can not override the law.

And, if you think about it, it already happens. If some German company goes and buys a copy of SuSe Linux, they'll get plenty of support from SuSe.

Should you worry about it for your own freeware utilities? Probably not too much, unless it reformats someone's database server. Or unless it's a cleverly disguised virus. Then you can start worrying a lot.

And, honestly, I fail to see why that's a bad thing. IMHO it's about time that the whole software industry had some responsibility for their actions. The standard has become selling disfunctional software and then hiding behind some EULA. Or sneaking in provisions which basically give some vendor full rights on your computer, just because it said so near the end of the EULA. And, well, maybe what's needed is precisely some consumer protection law stepping in.

Re:Translation

[Narcissus]

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

[Anonymous Coward]

Q) Do idiotic clauses in MS EULAs get fixed based on user feedback

A)
http://yro.slashdot.org/article.pl?sid=03/06 /17/14 30223&mode=nested&tid=109

http://slashdot.org/article.pl?sid=03/06/26/1913 24 2&mode=nested&tid=109&tid=185&tid=187&tid=190&tid= 201

Re:Translation

[anshil]

All true and insightfull, however one exception warrenty in germany is only forced in consomer-deals.

Defined is it this way: one side is a company acting in it's companies field, and this does not apply to the other side.

As a private person selling anything you can void warrenty. A company selling to another company working in the same field can void warrenty.

However a company acting in it's field of buisness may not void warrenty for a private person or a company concentrating on another field and thus has little knowledge on the field which is base of the contract

Re:Translation

[Anonymous Coward]

That's bizarre.. moral rights typically can be waived, but not assigned...

If I take a photograph, sell it to someone, and (in contract) give them the right to modify it to fit their page (say, by cropping), these guys say that I can then sue the person for cropping the picture, even though I gave them permission?

That's pretty fucked up.

Re:Translation

[anshil]

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.

YES thats the way it is. Mostly.
It is the consumer protection law, that forbids voiding the warrenty.

However as you applied first it only applies to deals with compensation. Meaning if you give it away for free it is for free.

Next is consumer proteciton law only applies to certain deals, namely following: One side is a company that acts in it's companies field, and this is not true for the other side.

Meaning as a private person selling (GPL) stuff you may void warranty. As a company selling (GPL) stuff to costumer you may not void warranty.

Re:Translation

[SunPin]

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.

Re:Translation

[Anonymous Coward]

That's an important point (mod parent up). The GPL is a license which gives rights. Copyright-wise, it does not take anything away. Ignoring the GPL doesn't get you more distribution rights than what you get when you accept it. Almost all provisions in the GPL which seem to take something away don't, because they can't take away what you don't have according to copyright law.

The problem is in section 10 and 11, the liability disclaimers: These sections are phrased to limit liability only as far as applicable law allows. A user may not be bound by these sections, if he doesn't distribute the program (and therefore doesn't "automatically" accept the GPL). Also, in many countries, you can't repudiate liability completely, which may surprise someone who, in the spirit of cooperation, licenses software under the GPL.

Re:Translation

[FranklyMyDear]

...developing free software even if you only contributed a very minor part of that software, could open you up to liability for a severe negligence claim.

[...]

If you're given it by a bunch of Free Sofware developers, you're in trouble as they'll be much more difficult to track, it'll be difficult to prove they're the right developers [etc.]

See the contradiction there? You can't have it both ways. There are three cases:

1) The customer is more likely to get compensation for bugs in Free Software they use than with proprietary software. Yay for customers!

2) The customer is less likely to get compensation for bugs in Free Software they use than with proprietary software. Yay for Free Software developers!

3) The customer is equally (un)likely to get compensation, regardless of whether they use Free or proprietary software. Uh... same difference.

Re:Translation

[Anonym0us Cow Herd]

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.

So how are Microsoft / RIAA / MPAA / SPA / BSA / Initiative for Software Choice / etc. going to feel about that?

I mean, if I can't sell my eternal soul to the err. um, (oops wrong party), if I can't sell my rights, and I can't even give them away, then how can I possibly agree to the EULA?

Re:Translation

[Anonymous Coward]

My question is, is this something unique to the GPL under German law, or do the same concepts apply to all software? For example, if I am a software developer working for a German company, am I exposed to the same risks of liability? If not, what makes the situation different?

Re:Translation

[Laur]

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.

Can a company really be held liable for software it didn't write? I.e. Red Hat Linux comes with Mozilla. If I purchase Red Hat and find a fault in Mozilla I could potentially hold Red Hat liable, even though they have nothing to do with it's developement?

Re:Translation

[stephenbooth]

how can I possibly agree to the EULA?

Actually, I'm not sure that you can. At the Linux Expo last week that was attached to the "Networks for Business" show I was chatting a a guy from Belgium who sells merch to fund OpenBSD development. One of the things he mentioned was that in many European states a license is only binding if you have signed a paper copy of it. Therefore both the GPL and all those click-wrap/shrinkwrap licenses are not binding (I presume that *BSD &c licenses would similarly be non-binding), in Europe at least.

This is actually something that might be relevant to some projects I am involved in at work so I'm currently trying to work out the best way to phrase a question to put to the legal department to get a definitive answer and minimise their chance to weasel out of actually answering the question (our lawyers don't like giving legal advice that could be taken in any way as 'definitive').

Stephen

Re:Translation

[Anonymous Coward]

I am not sure about the German laws, but in general there are fundemental differences between rights and licenses. With Linux for example, the author does not give up their rights to their own work, they merely license their work to others. Even in the US where it is perfectly legal to ascribe your rigts to another, with regrads to copyright, there is an unrevokable 35 year rule which allows origional authors to re-assert their rights. This, however, still does not affect licenses, or at least not directly.

Re:Translation

[Anonym0us Cow Herd]

Actually, I'm not sure that you can. [agree to a EULA] .... both the GPL and all those click-wrap/shrinkwrap licenses are not binding

This must be fixed. We must have protection of Intellectual Property. If I can't sell my rights, and I can't even give them away, then the only solution remaining is that I must pay to have my rights taken away. The only questions remaining are: (1) how much, and (2) how soon can this be incorporated into the new EULA?

Re:Translation

[Random Walk]

They did. The situation in Germany seems to be: if you give away your programs for free, you are only liable for gross negligence or intentional damage.

On the other hand, if your GPL program is an add-on primarily intended to boost your sales of another product (say, a GPL installer for a commercial Linux distro), your liabilities may get extended by applicable laws.

Re:Translation

[Random Walk]

these guys say that I can then sue the person for cropping the picture, even though I gave them permission?

Probably you cannot. After all, in your example you allowed them to do that, so you knew in which way the photograph would get modified.

Better example: you sell a B/W photograph, and then someone, without your approval, colors it in weird colours, and puts it up in a public place with your name next to it. Might hurt badly your reputation as an artist.

Re:Translation

[ajs]

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.

Re:Translation

[egghat]

Ah, thanks for that info. Very interesting. And somewhat contrary to the paper of the ISV (what else did you expect ...).

I hope, that the GPL stands these tests. But even under the US law that's not 100% sure.

Bye egghat.

Re:Translation

[Anonymous Coward]

In more than 100 pages he examines the situation from different perspectives: ...

Geez, leave it to a law professor to write a 100+ page analysis of a 1 page license agreement.

Re:Translation

[LMCBoy]

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.

Re:Translation

[Znork]

So, if you write a virus and give to someone, telling them it's a new neat editor, and it destroys all their data you wouldnt be legally liable for that?

You can always be held liable for deliberate sabotage or gross negligence, in pretty much any jurisdiction, no matter if there's a contract or not, and even with liability limitation clauses.

If you cant live with that you probably shouldnt be writing and even giving away software you know will damage peoples data.

That German law is explicit about the fact that you cannot limit some kinds of liability isnt really unique (many european countries have the similar laws), nor are you really protected against that kind of liability in the US either.

It isnt really a big problem for free software anyway, unless you're into deliberately screwing peoples systems up.

Re:Translation

[inc_x]

They can both be true if you recognize that the world isn't black and white.

Developers of open source software are liable for their work to a certain (minimum) extent, despite what clause 11 says. But they are held to lower standards than a commercial software vendor, mostly because they don't have a direct commercial interest.

When you are starting to sell open source software your liability increases. Traditional software companies are aware of that and counter that by conditions in their EULA. (To an extent that they may very well, at least in Germany, be held unenforcable.)

Open Source companies such as SuSE have recognized this for quite some time already as well which is why your set of SuSE cd's is sealed with an EULA that limits liability.

Re:Translation

[Anonymous Coward]

Finally, somebody sees the catch. (L)GPL says you fall back on standard redsitribution rights if you can't adhere to all the clauses of the license. Problem is, in Germany, you can't, because you can't disclaim liability. The license is unenforceable.

That's the difference between a right-granting and a right-limiting license. If you sign one of Microsoft's EULAs, and we find that we can't disclaim liability, then...well, we're the losers. You gain rights by our loss. GPL has a very different property: if it is invalidated, then you lose rights through the distributor's loss.

Now that I think about it, I wonder whether SuSE can legally redistribute Linux in Germany. It surely must be allowed to, but I don't see how to get around the argument.

Re:Translation

[frause]

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.

IANAL, but from what I understand, under the GPL you can't sell the software itself. You can charge for the distribution (like putting it on a CD and shipping it) of the software, or you can charge for warranty for the software.

You can't charge for the software itself.

IMO, you would only be liable for the distribution, since that's what you charge for.

Re:Translation

[aaarrrgggh]

But, as a company spending money on developing a product, they are not guaranteed the right to re-distribute that product under the terms of the GPL, if the GPL is not held up.

This would make things like Tivo tricky in some areas, where they have modified the Kernel, and packaged it in their hardware.

Re:Translation

[Anonymous Coward]

i think you are remembering the provision which forces you to provide source code for free (although you may charge s/h) to anyone you sent the binaries to.

You can charge what you like for GPL software. Its just that you can't prevent someone else from giving it away.

Re:Translation

[oxygene2k2]

it's not so much about the "on paper" thing (it could be in any legally binding way), but it has to be _before_ you buy the product (and the waiver "you can send it back for a full refund" might or might now work)

as for EULA vs. MIT/BSD/GPL/.. licenses:
the EULA takes away rights you'd normally have (reverse engineering), so you have to be informed about it before you buy (and of course agree to it)
the Free Licenses have no effect on "normal" use, only if you want to go _beyond_ existing law (like copying/selling) where they extend it for you.

EULA:
If you use the application, you have to hand over your first born - or whatever they want from you these days. Anything beyond the law is explicitely forbidden.

FLOSS Licenses:
If you don't redistribute the program, you couldn't care less about the license, if you do, you have to know about the license terms anyway

Re:Translation

[thona]

::Can a company really be held liable for ::software it didn't write?

Yes. I made a teal with Installshield a month ago about getting their next version free or taking them to court on base of the quality of their product.

NOW - how is this applicable? I never asked THEM for the deal. I told the dealer to fix the shit or face a lawsuit. When he said he is only the dealer, I pointed him to pretty exactly this part of the law - HE is my legal partner, NOT the manufacturer.

Re:Translation

[nusuth]

IANAL, but from what I understand, under the GPL you can't sell the software itself.

Your understanding of GPL is incorrect. You can sell GPLed software just like any other software. You just can't forbid your consumer to do the same.

What you can't directly sell is the source code to someone you already have given/sold the binary (note that you are under no obligation to supply source code to anyone asking for it, you have to supply only to those who got the binary from you.) In that case the maximum you can charge for supplying the source code is price of medium (like blank CD) and shipping.

Of course you can sell the source code at any price you like to someone who had not bought/taken the binary from you. That is just like selling the binary+source code without the binary.

Re:Translation

[Minna Kirai]

a license is only binding if you have signed a paper copy of it.

Not a problem. Print out the GPL and sign it then. You can even mail a copy to the author, if you like.

The GPL gives you permission to do things that are otherwise illegal (distributing modified version is a copyright violation). If you don't feel like doing those things, you have no reason to sign. You won't have to give up using software you've already recieved.

If EULAs turn out to be illegal under that principle, fine. They try to prohibit you from doing things which are your legal right as a customer, and they should be struck down.

Re:Translation

[sacrilicious]

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

[frause]

okily dokeily

Thanks for the clarification

Re:Translation

[Minna Kirai]

note that you are under no obligation to supply source code to anyone asking for it, you have to supply only to those who got the binary from you.

Please do not spread lies.

Here's a quote from the GPL:
b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code

Here's a quote from the GPL FAQ:
This means that people who did not get the binaries directly from you can still receive copies of the source code, along with the written offer.

Re:Translation

[egghat]

But if OSS doesn't have a licence at all which applies to users of the software, then what? Is someone liable? Who is liable?

"Use at your own risk" *may* simply not apply.

(These are not my ideas, they are from the paper. At and at least they have to be asked. The paper is full of "ifs" and "mays"; it doesn't not say that OSS is impossible, that all OSS programmers can be sued, etc. )

Bye egghat.

Re:Translation

[nusuth]

Ok, I was wrong, I'm sorry about that. I wasn't lying though, it was my understanding of the licence.

Re:Translation

[BlueWonder]

Can a company really be held liable for software it didn't write?

As far as I understand German law (I'm German, but not a lawyer, and additionally these laws have just recently been changed), yes.

An often quoted example is this: if you buy a piece of bread at a bakery, and there's a stone in it, so that you loose a tooth, the bakery is liable, even if the stone has already been in the flour without the baker's knowledge. Of course, the bakery can itself claim damages from the vendor of the flour.

If I purchase Red Hat and find a fault in Mozilla I could potentially hold Red Hat liable, even though they have nothing to do with it's developement?

Yes, but courts will probably apply a certain standard what constitutes a fault. A minor bug will most likely not be enough.

Re:Translation

[geekee]

The point is, it doesn't matter whether you agree to something, or nothing. The person who wrote the software is still liable if you feel like suing him, because Germany feels obligated to provide consumer protection.

Re:Translation

[anshil]

free of charge buisness is never bounded to liability.

Re:Translation

[Arandir]

Funny you should mention Siemens. I work for Siemens. They are 100% behind Windows all the way. Non-Windows projects in my division are being phased out or outright halted. The corporate wide IT policy is MS Exchange only, with no webdav support. In my own division we are building an realtime diagnostic embedded system that is based on WinXP solely because Siemens Corporate says it will be WinXP. Anytime a "new" technology is rolled out of Siemens USA IT headquarters in Isselin, it is invariably a Windows only solution. Most company intranet sites are only viewable under IExploder.

If you know of a Siemens division that genuinely does have an interest in Linux, UNIX, BSD, Open Source, etc., please let me know, so that I can see about transferring there. But my current division is strickly a "yes man" to Bill Gates.

Re:Translation

[jesco]

"Two lawyers, three opinions."

Re:Translation

[rifter]

Please do not spread lies.

You might take your own advice ;). Actually this is a common misconception about the GPL. You will notice the relevant section more fully reads:

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

* a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

* b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

* c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

Notice that you can choose to do a, b, or c. Most people choose a) in which case I can, for instance make Rifter's Nifty Linux Distribution and charge $5000US for it, include the source, and when someone comes to me for source I can say "sorry charlie, $5000US please!" I cannot, however, prevent any of the people who pay me $5000US from posting the source to slashdot, putting it on an ftp site, printing it on toilet paper, whatever floats their boat. They will, of course, have to choose a,b, or c themselves when distributing binaries, though.

The b option you mention only applies if I fail to provide source along with binaries. This is an incentive to provide source directly with binaries and not be an ass about making people submit requests for source through som esoteric bureaucratic procedure. The stick in this deal is that if Rifter's Nifty Linux Distribution, costing $5000, does not come with source in the same package, I have to give source to every tom, dick, and harry that shows up, whereas if I do supply source along with binaries (per option a) I do not have to care.

Option C is kind of interesting. I really dislike option C being there, but I understand it is an out. Essentially it says I can relay someone else's promise to give you source. I wonder if this is how Microsoft got away with not distributing source with the GPL software they sell and telling people to download it from gnu.org?

Re:Translation

[Minna Kirai]

The b option you mention only applies if I fail to provide source along with binaries.

The post I was responding to specifically used "option B". It described the scenario of a person selling a binary, and later wishing to only mail source code to people who paid a nominal fee, AND had gotten the software directly from him.

The post stated that a person can sell a GPLed binary, without including the source, and not be obligated to provide source code to people who recieved the binary indirectly. This is wrong.

Re:Translation

[Anonymous Coward]

"E.g. that you don't need to confirm that you agree to the GPL while installing the software"

Really, have you installed a copy of OOo lately?

Re:Translation

[Laur]

An often quoted example is this: if you buy a piece of bread at a bakery, and there's a stone in it, so that you loose a tooth, the bakery is liable, even if the stone has already been in the flour without the baker's knowledge. Of course, the bakery can itself claim damages from the vendor of the flour.

This analogy seems flawed, since the bakery made the bread from the flour and presumably should have found the stone. In the case of Red Hat packaging Mozilla, Red Hat wasn't involved in the creation of Mozilla at all, they just packaged and sold it. Perhaps a better example is cars, if Ford cars have a dangerous design flaw, Ford gets sued, not the dealership where you bought it. So, under German law, you could sue the Ford dealership for selling you a faulty vehicle?

Re:Translation

[slimme]

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?
Have you been suing Microsoft lately for lost time/lost data/lost ...?

I can safely say that (in Belgium) the EULA will stand when it is being agreed between businesses, even if you don't need to click through it (you can enter into an agreement by behaving as if you had entered the agreement). Judges assume that companies know what they do when they enter an agreement (contract), even an implied one. That contract then gets the same authority a a common law (unless it violates a law).

The only way a company can convince a judge to scrap provisions of the contract is to prove that the provisions are completely one sided AND that you had to enter the agreement to keep your company from disintegrating (you are forced). Another ground for stopping the contract or scrapping some provisions are bad faith or gross negligence from the supplier. Both of them are very hard to prove. That's why no comany will be sueing Microsoft (or people protected by the GPL) and getting some money. As a company, the EULA is your law.

The consumer (in Belgium) of course should not care about any stupid provisions in an EULA. Any judge will scrap them. But there aren't that many consumers that will sue, prove their damages and still make a profit.

Re:Translation

[Kindaian]

Hmmm...

The vendor doesn't sell the software, but the service to compile the package.

And when someone buy a server, they buy the hardware and the service rendered for configure it...

Where is the software beign sold here to be bound by any business law? Nowhere the be found...

There are only services, and for those services the parties can sue and bitch all they like!

The liabilities are delivered to the hands of the end supliers and the end consumers...

Re:Translation

[Lars T.]

Good enough?

Re:Translation

[Arandir]

I'll have to check into that division, but I still bet they all have Windows desktops just to schedule meetings with Outlook Calendar...

Re:Translation

[hughk]

Exactly. If you as a developer make use of LGPL software, and you then incorporate that into a commercial package, you assume liability for it. This is reasonable and not new.

If I buy a RedHat or Suse distribution, everything is freely downloadable anyway. What I pay for is the 'packaging' and support.

As for author's rights. Well you can't disown your work but you can reassign the copyright. As for collective rights, well again this is no problem in the book publishing field. Why should it be for software?

Personally, I just see this as another attempt to spread FUD.

good babel quotes

[I Want GNU!]

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."

Re:good babel quotes

[pe1rxq]

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

Re:good babel quotes

[Zayin]

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..

Re:good babel quotes

[benna]

Are you admiting to reading all of those long messages when you install your software?

Re:good babel quotes

[Anonymous Coward]

I like your sig.

Re:good babel quotes

[Anime_Fan]

I admit to having read those. I often do it when I don't have anything better to do. I've even read the WinXP EULA. Didn't get me any wiser.

I also remember one program that was God-sent:

( ) Accept
( ) Accept and read licence while installing
( ) Cancel

Re:good babel quotes

[pe1rxq]

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

[Anonymous Coward]

Hmm, should be more like "Tentatively accept and re-read the licence while installing, to confirm."

finally

[Anonymous Coward]

...a reason to learn German. And finally a real reason to post b4 reading the FA.

Re:finally

[TopShelf]

and finally something to use my university-mandated foreign language classes for! Other than ordering Viener Schnitzel and spatzel, that is...

Re:finally

[Sique]

Please order "Wiener Schnitzel mit Spaetzle".

babelfish translation

[Anonymous Coward]

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

Re:babelfish translation

[mcbridematt]

And so has Google Translate ( http://translate.google.com )!

Re:babelfish translation

[Anonymous Coward]

I work with German IT developers, and that "quote" is the funniest thing I have read in months.

Oh no, damn that means my life is a joke too...

I must be catching the gloomy German world view

Re:babelfish translation

[Kirth]

Its a very old text, found on some MIT-computerroom, I think. Anyway, it doesn't even sound german, but more like dutch.
--

Re:babelfish translation

[Anonymous Coward]

The *sound* of it is definately German (more than Dutch) and the words are nowhere near Dutch either, so I'd say it's pretty safe to say that it's a German spoof.

Re:babelfish translation

[vrt3]

Anyway, it doesn't even sound german, but more like dutch

Hm... I'm a native Dutch speaker, and it doesn't sound Dutch at all. I only know a bit of German so I wouldn't try to say anything about the syntax, but lots of the word sound an awful lot like German, or are even German.

Re:babelfish translation

[Anonymous Coward]

ACHTUNG!
Das GPL ist nicht fuer gesoftware-writen in das Deutschland. Ist easy schnappen der Legalsystem und kopfen-poppen das Laywers. Das hackern ist strengstens verboten, keepen das hands in das propeitary pocketts. Relaxen und watchen das SCO vs IBM case!

Re:babelfish translation

[Anonymous Coward]

Well, the German sense of humour is no laughing matter!

Re:babelfish translation

[Anonymous Coward]

All the German you need to know:

Ein bier, bitte. One beer, please.
Ein anderes bitte, und schnell! Dieses Bier schmeckt vom Eselurin! Can I have another, please? This one does not taste very nice.
Wo ist der Jungenmaedchenraum, bitte? Where is the Gents', please?
Wo ist der Jungenknabenraum, bitte? Where is the Ladies', please?
Bei der BMW-Arsch-drueckenauto, ebenso der Treiber. I don't like rear-wheel-drive cars very much.

Re:babelfish translation

[fredrik70]

oh, the blinkenlights has a long history!
check it out here!

Re:babelfish translation

[p3d0]

Wow, nice user id.

Re:babelfish translation

[Anonymous Coward]

lots of the word sound an awful lot like German, or are even German
Some of the words really are German words. However, most are English words modified to look & sound like German words.

dumm = dumb, kopf = head
dummkopfen would mean dumb-heads.

That's one of the very few German terms used. Others are das, ist, fur, nicht.

It's a humorous passage, but probably only to native English speakers.

Re:babelfish translation

[vrt3]

Very true, but that doesn't change my point that the text sounds more German than Dutch. (And BTW, I still think it's humorous, despite the fact that I'm not a native English speaker)

Translation of page 2 of the study

[BlueWonder]

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

[Anonymous Coward]

So in other words, it is "Gesamt- und komplettes Geschäft finanzierte Stierscheiße."

Re:Translation of page 2 of the study

[mjan]

From their web site:

Through its numerous activities, events and cooperations VSI has established a reputation for successfully lobbying the specific needs and positions of the software industry.

I think that should read: "closed source software industry".
Members include SUN and Microsoft.

Re:Translation of page 2 of the study

[slimme]

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.

Re:Translation of page 2 of the study

[BlueWonder]

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 compensation) open source software is liable. This is no different from selling propietary software. Yes, it could be difficult for users to hold a vendor of open source software liable. This is no different from holding a proprietary software vendor liable.

Re:Translation of page 2 of the study

[CrazyDuke]

While I am at it, I guess I should also thank:
- That asshole that cut me off because he helped me improved my alertness.
- The the kids that robbed me because they let me know I need to beef up my home security.
- Homeland Security for relieving me of my troublesome management of my civil liberties.
- SCO for helping us with Linux.
- Pretty much everyone else that has gone out of their way to shaft me for their own personal gain.

Next study

[Ricin]

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.

Re:Next study

[SpaceLifeForm]

There won't be a study on EULA. This is just FUD. If for some reason there is a study on EULA, it will not be in Germany! The BS message will be that an EULA from a company is better than [L]GPL, and therefore you are safer buying software from a warm, caring organization such as Microsoft than to risk the elements in FOSS land.

that doesn't make much sense

[73939133]

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.

Re:that doesn't make much sense

[ctid]

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

[SmallFurryCreature]

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!

Re:that doesn't make much sense

[73939133]

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 hand, Europeans are more tax happy and restrict speech a bit more.

If we can get the best of the US and Europe, we would be a lot better off. If the bad habits of the US spill over to Europe and vice versa, we are really in trouble.

Re:that doesn't make much sense

[Anonymous Coward]

why would I want to "fix" a law which protects me from the negligence or malicious intent of a person of whom I acquired a software in good faith? Fix the software, not the laws which protect the users.

-t

Re:that doesn't make much sense

[Sabalon]

It's the "sue everyone" mentality. You never know when you might be able to get money out of them.

Upset that you got fired for downloading porn at work - well, sue the company for the internet connection, the isp that served the porn, the photographer that took the picture, and the "model".

Bet the farm on some software you didn't test? Why take responsibility for not doing your job. Go on a witch hunt instead.

Re:that doesn't make much sense

[Phroggy]

Really europe makes some extremely dence laws, netherlands introduced a .5 to 1 euro tax on dvd recordables,

Unless the proceeds from the tax are being paid to media companies (as I believe is the case here in the US with the tax on CD-Rs), how is this substantially different from a tax on alcohol, tobacco, gasoline or rental cars?

Re:that doesn't make much sense

[Anonymous Coward]

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.

Jesus Christ!!!

Please learn grammer and spelling!

Re:that doesn't make much sense

[SmallFurryCreature]

hehe, but that is exactly where they are going to.

What you are perhaps suggesting is a regular tarrif or a sales tax. Both of these are just ways for goverments to get money to pay for all the stuff we use. No problem with this, if I had I would move to the US or an other country with low taxes.

This new tax is not that. No schools are build with it, no nurses trained or criminals locked up, our freedom is not defended with it. It goes to "artists" who already get tax paid benefits to save them from getting a real job.

Perhaps I should have made it clear that it was like what canada did with cd's. Except a lot more expensive.

Re:that doesn't make much sense

[Anonymous Coward]

grammar. asshole.

Hourra!

[borgdows]

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!

[Noryungi]

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.

Re:Hourra!

[cranos]

My god, a lawyer, on /., quick boys don't let this one get away. The next time another IANAL pops up we can aim this one at it.

Re:Hourra!

[Anonymous Coward]

So, is it even remotely true?

shold be a problem in brazil too...

[protomala]

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.

Re:shold be a problem in brazil too...

[Anonymous Coward]

I am in south america also and in colombia and specifically GPL software has been outlawed for many years now as software taxes are based only on selling value. Without selling software you are cheating the government out of taxes and thats their theories

Re:shold be a problem in brazil too...

[listen]

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 stuff too.

Re:shold be a problem in brazil too...

[stinky wizzleteats]

The GPL is a license. The code is "owned" and copyrighted by its author. This is the only meaningful way the license can be enforced.

Hold It!

[CaptainZapp]

I admit I didn't read it; or more precisely I read the first statement, which translates to The German Lobby Group for Commerical Software comisioned a study... to know that this really can't be relevant.

It's like a study, which proves that smoking is good for you, comissioned by er! Philip Morris and RJ Reynolds.

Nothing to see here, next!

WARNING: THIS STUDY IS F.U.D. !!!!

[quigonn]

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.

Re:WARNING: THIS STUDY IS F.U.D. !!!!

[CrazyDuke]

Why is it not surprising to find Microsoft's hand in the SCO cookie jar again?

Re:WARNING: THIS STUDY IS F.U.D. !!!!

[sir_lichtkind]

yes man, i am german and read even a fiew pages and i can tell you, it smells like FUD. everything seems neutral an free from support for one party. it seem completly written without any bit of emotion. he even formulates things about OSS that it sounds to normal emotional man worse than it is. frequently repeatet phrases: GPLis not real freedom rigths and paragraphs are important GPLis not real freedom you have to be scared of support GPLis not real freedom OSS is VERY risky becaus lack of warranty GPLis not real freedom FUDFUDFUD

Re:WARNING: THIS STUDY IS F.U.D. !!!!

[dfgdfgdfg]

The VSI has an article about the paper. Some bits translated:

• Die Entwicklung, Nutzung und der Vertrieb von Open Source Software (OSS) birgt rechtliche Probleme. Der Grund: Die meisten OSS-Produkte werden unter der so genannten General Public License (GPL) vertrieben.
  Development, usage, and distribution of open source software (OSS) comes with legal problems. Reason: Most OSS-Products are distributed under the so-called General Public License (GPL).
• Die Betrachtung rechtlicher Aspekte steht zunehmend im Zentrum der Debatte um Einsatzmöglichkeiten von 'freier Software'. Die Studie offenbart rechtliche Schwachstellen, die bei der Nutzung von OSS entstehen und die unmittelbare wirtschaftliche Risiken für Entwickler und Nutzer darstellen. Diese unternehmenskritische Relevanz unterstreicht die Bedeutung der Studie?, so Johannes Krüger Generalbevollmächtigter des VSI-Vorstands.
  "Discussion of legal aspects are increasingly at the center of the debate about 'free software'. The study uncovers legal weaknesses that may arise when using OSS, and that may pose immidiate economic risks for developers and users. This corporate-bound relevance puts emphasis on the meaning of the study." so Johannes Krueger...
• Die Bestimmungen der GPL weisen laut Studie aber erhebliche Rechtsunsicherheiten auf. Diese sind nach Ansicht des VSI im Wesentlichen auf die Grundprinzipien von freier Software zurückzuführen, insbesondere die freiwillige Weitergabe der Programmierleistungen, die nicht zentral unter der Leitung eines Unternehmens entwickelt worden sind.
  According to the study, the terms of the GPL have legal weaknesses. Those are in the opinion of the VSI mainly due to the basic principles of free software, especially the voluntary giving away of programming work that was not developed centrally under the lead of a corporation.

Re:WARNING: THIS STUDY IS F.U.D. !!!!

[matmota]

The (perceived?) problem exists, and is preventing certain software from being released as GPL.

In particular, the ActiveMath system, developed in the University of Saarland and the DFKI.

I've been working in this project for one year, but I've been trying to convince them to release it as GPL for more than two years. Consistently and repeatedly, the answer has been that they wanted to do so, but "the GPL is incompatible with German law". The lawyer they consulted, some Professor at the Uni whose name I don't remember now, also wrote a lengthy analysis which I couldn't read since it was in German. But everyone here insists on that indeed the GPL is not valid in Germany.

I planned to raise this issue in the round table Suggestions for encouraging the creation of Free software for researchers at the end of the Libre software and research track in the Libre Software Meeting in Metz, so if other people want to discuss it there, I'd be very interested.

Below I reproduce the content of the email I sent to activemath-dev on Tue, 30 Jul 2002 10:49:41 +0200, with what I know about this issue:

>[copyleft doesn't agree with German law]

Do you have some exact quotation? Like an email or something?
Many GPL programs are produced in Germany.

Seems like the only clash is the "no warranty" clause (points 11 and 12), that would be illegal in Germany ("Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen"). (This doesn't mean that you become a criminal by releasing your software with such a clause. It's only that said clause does not apply.)
This just means that we can't reject responsability, just like any other software publisher in Germany.
AFAIK, the rest of the GPL is perfectly applicable in Germany:
http://mailman.fsfeurope.org/pipermail/discussion/ 2000-November/000043.html

However, it seems to be the case that, when distributing something free of charge and with the source available for inspection, that responsability is greatly reduced:
http://www.ifross.de/ifross_html/art3.html

More information can be found in the other pages at the "Institut für Rechtsfragen der freien und open source Software":
http://www.ifross.de

To avoid the dangers of not having the "no warranty" clause, some people use some "Allgemeine Geschäftsbedingungen" (AGB), which put some mechanisms in place to shield the software publisher from sueing. There is a peculiarity in German law that allows anyone to ask for a fee to a publisher when warning them of some infraction, such as trademark infringement. Thus one of the points of these AGB is to allow downloading only to people that abide to them by means of a password-protected download area, and then requiring for access an agreement that the person obtaining the software renounces to use the files to look inside for infringements.
However, this restrictions cause conflict with the GPL, as they are certainly restrictions on the freedom of the users, and can easily make the software non-free:
http://mailman.fsfeurope.org/pipermail/discussion/ 2001-May/0010

Just read the first few pages

[mocm]

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.

Re:Just read the first few pages

[Anonymous Coward]

Exactly.
Of course he doesn't really understand it.
It is a contract designed with US law in mind.
It is not realy compatible with copyright laws
in many European nations because it is rather
complicated by European standards and neglects
the inherent rights of authors found in these
laws.

Does this impact SCO vs LinuxTag??

[jkrise]

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.

Re:Does this impact SCO vs LinuxTag??

[Anonymous Coward]

what's the German word for butt??

it's "Arsch" so there you go!

-Marek

Re:Does this impact SCO vs LinuxTag??

[DataCannibal]

Well, I asked my four year old daughter (who's bilingual) and she said that it's Popo, :-)
Obviously shes hasn't had the need to use the word "arschtreten" yet. Which is what most of us hope IBM will do to SCO,
cheers Phil

The responsibility for the product?

[kompiluj]

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.

Re:The responsibility for the product?

[JavaPriest]

I believe that the Microsoft licenses explicitly decline responsibility for damage caused by the software.
So I think you are right!

Re:The responsibility for the product?

[stinky wizzleteats]

Has anyone been compensated for loss due to Windows misbehaviour or, say, Oracle DB bug?

Man, no doubt. I was wondering if I was the only one who saw the incredible hypocrisy of commercial software representatives bringing up product liability. Yeah. Like that's not going to come home to roost one day.

Stupid bastards.

Re:The responsibility for the product?

[pacman on prozac]

But this cannot override the law of the land where the product is sold.

Its the same as if I wore a sign saying "by reading this sign you agree to let me kill you" then went around shooting people and expected not to get prosecuted for murder.

Re:The responsibility for the product?

[shking]

As I have skimmed through the professor's analysis (exactly 64 pages, not 100)

Well it's 100 pages if you count in Octal!

Follow the money

[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.

A way to make money and stick to the GPL...

[Gleeb]

The best way to make money and stick to the GPL is to use external resources. Coders who are willing to work under the GPL don't mind giving their code away free, but obviously, they need to get paid.

All these little icons and even bits of text can be stored in an external file, which is required to run the program. It's still GPL compliant, and you still get some comeback on your work.

Re:A way to make money and stick to the GPL...

[Anonymous Coward]

This is more valid for games than ordinary applications.

Re:A way to make money and stick to the GPL...

[spitzak]

No it could be used for trademarks. Say KDE is really popular, they could (and probably have) trademarked the KDE icon in the corner. Even though you could copy all the code under the GPL and make your own version, you are not allowed to use that icon. You must replace it with your own. Ideally the code will work if the icon is missing so that nobody can make any argument that the icon is a necessary part of the code and thus must have been released under the GPL.

Such icons would immediately identify the code as "genuine" and that could be turned into a method to make people buy the real thing rather than a copy.

Or a road-map display program could be open source, but the map data it reads copyrighted. You could make modifications to this program but it is useless unless you either provide your own map data, or you give or sell it to people who already have bought the map program.

"illegal" terms are common in non-Free licenses

[Anonymous Coward]

All of the "unlawful" liability limiting terms are common to non Free software licenses as well.

This really is not news though as this point has been raised on numerous occassions.

Given that anyone not accepting the offered Free Software license for a software package has no right to use it at all anyway I don't see the problem - either use it under the available terms or don't use it.

Re:"illegal" terms are common in non-Free licenses

[Zigg]

Given that anyone not accepting the offered Free Software license for a software package has no right to use it at all anyway I don't see the problem - either use it under the available terms or don't use it.

The problem with that line of reasoning is that governments then pass laws that allow the user to use the software and ignore certain terms of the license.

Re:"illegal" terms are common in non-Free licenses

[Anonymous Coward]

Given that anyone not accepting the offered Free Software license for a software package has no right to use it at all anyway I don't see the problem - either use it under the available terms or don't use it.

This is not true: the GPL is a copyright license, not a End User License Agrement. It specifically states:

GNU GENERAL PUBLIC LICENSE TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION

Also it specifically states the 'NO WARRANTY' clause is limited by 'applicable law'.

German Alternatives

[yanestra]

There is an attempt 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"?

Re:German Alternatives

[Anonymous Coward]

Actually this is an attempt to make a GPL for 'media content' - think pictures, movies, sound.

They have a taken a look at the GPL (US, for Software), broke that down to a list of legal properties inside german law and created three translations for 'media content'.

They commented on each legal property.
IANAL, but the only thing they played save was "Namensnennung" (taking credit for the 'media content') due to liability doubts.
So they decided to be cautious and devised if you change the 'media content' you are the only to appear on the credit list and assume full liability.
They could not think of a way to attribute bits of 'media content' to a single person (entity).

This contrasts to GPL software where you have source code control system. There you could show who did what.

chess

Re:German Alternatives

[Politas]

While it is a great idea to provide translations of the GPL and other OS and/or Free licences, the FSF makes it quite clear here that the English version of the GPL is the official version that actually applies legally.

So what if GPL is invalid?

[jkrise]

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 hardware though.

Re:So what if GPL is invalid?

[mdwh2]

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?

No. Standard copyright law says that companies like MS aren't allowed to distribute software based on people's code, whether or not they distribute the source code of their changes with it.

The question of whether this part of the GPL is enforceable or not seems irrelevant given that the law offers stronger protection by default. However, this article seems to be more concerned with issues of liability.

Re:So what if GPL is invalid?

[spitzak]

If the GPL is "invalid" then NOBODY can copy the code, because it is simply an "exception" to copyright law that gives certain rules under which you can violate the copyright. If it vanished you would not be allowed to copy the code at all.

MS could not steal GNU/Linux code and put it in their kernels any more than they do now.

No Linux distros could exist at all. Anybody wanting to sell Linux would have to negotiate rights to the copyright with every single developer of the kernel.

The new h/w design/spec could not use a copy of Linux without also negotiating the rights to the copyright.

He's right, kinda

[Anonymous Coward]

This VSI page in English lists Rudolf Gallist as "chairperson" and this page in English shows that Rudolf Gallist was a "business leader of Microsoft Germany" from 1991-2000. So he hasn't worked officially for Microsoft in 3 years, but still, there is a connection...

Re:He's right, kinda

[root 66]

When you give your soul to the devil, you don't get it back, do you?

IANAL but I'm German

[Advocadus Diaboli]

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?

[BenjyD]

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"

Re:How is an open-source developer liable?

[Anonymous Coward]

Some sorts of liability cannot be excluded by contract. In England, for example, a contract cannot remove your potential liability for causing death or serious injury. A contract also cannot be enforced unless there is the exchange of a "consideration" - such as money. The GPL is not a contract, it's a license, but I can see that a court might hold that some of its provisions are of a contractual nature and therefore subject to the law of contract. IANAL.

Re:How is an open-source developer liable?

[BenjyD]

What about those waivers you have to sign before doing dangerous activities like rock climbing at sports centres - "I understand that rock climbing is a dangerous activity and could result in all sorts of horrible painful injuries". Do they not really have any legal standing?

Re:How is an open-source developer liable?

[anshil]

True there are a lot of laws that cannot be bypassed by contract. Luckely. (Or I would write on my car: "Not responsilbe if I hit you")

However the GPL _is_ a contract, like any license is a contract. However in difference to most other contracts it is not signed or accepted explicitly. Under certain conditions contracts can also be accepted implied.

The famous school example is, you offer me to sell you car for 1.000$, I say I don't know yet, give me a week to think about it. You agree. The next day I transfer exactly 1.000$ to your bank account. In this case, without doubt my true intentions are visible, so the contract is valid.

The GPL is something similar, if you redistribute the application it, or modify it, you can only do this when you've accepted the license. So infront of court you can choose if you did not accept the license, and violated IP by distributing, or you accepted the license implicitly. Your choice.

Thats the way the implicit acceptance of the GPL works.

Re:How is an open-source developer liable?

[anshil]

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 company to company also. But no typical consumer deals.

Some laws are substutave, meaning they can be changed in contracts, but some laws are forcefully, meaning you cannot change them.

Re:How is an open-source developer liable?

[gowen]

Luckily. (Or I would write on my car: "Not responsilbe if I hit you")

Except contracts (by necessity) require two or more parties, so unless you could get the pedestrian to also sign, thats not a contract. If you could, and you later hit them, its by no means clear that the contract would be held invalid. Can't see any good reason why it shouldn't, tho' IANAL.

Re:How is an open-source developer liable?

[Anonymous Coward]

yes they do.

But the rockclimbing firm cannot put away all
their responsibillity. If they were negligent, gave you the wrong kind of rope for example. They would still be culpable, even if you have signed such a contract.

People here seem to think that its a really bad kind of law, but i like it. It means nobody can be completely without responsibillity for their actions.

Re:How is an open-source developer liable?

[anshil]

1st there are some one sided valid contracts. The testament is in example one. One sided founding of a Ltd. limidet an another.

Because one of the principles is the right of pyshical integrity every natural person has from birth until death. It is a legal principle that this fundamental right cannot been taken away from him under no circumstances. (Or else slavery would be legal)

You cannot make a contract with another that allows you to hit him, even he signs.

The main reason why a lot of things are forbidden in contracts is because often unequal partners sign a contract. There are situations one partner has a lot more power than the other has. If legal judgment would put not limits in the contract the empowered side could force the other side into everything.

An example is the typcial consumer-company relationship. Where you as 0815 consumer sign a buying contract with a huge company. Here the law giver is looking very closely on the fingers of the companies not to exploit the people. (for example right of withdrawal in out-of-door business). etc.

Re:How is an open-source developer liable?

[gowen]

You cannot make a contract with another that allows you to hit him, even he signs.

Of course you can. Happens all the time. Ever heard of boxing?

Sure, you can't use power to force the other person to sign, to protect the little guy, but thats only fair.

Re:How is an open-source developer liable?

[anshil]

Boxing is a sport and not a contract.

And I don't think a special contract is required to be allowed in an amateur boxing round.

And I too think boxing is a so constructed sport where I knock you out (or the other way around), but both sides should without accidents not carry harms from the event.

And even there if I kick your balls, during a boxing round, you would still be able to sue me.

Well I ment something different into forcing into conditions. Well you cannot force somebody to sign something. However you can force them into side rulings of a main contract.

When you depend on being able to make a contract with me (or may one other person with the same intention (oligopol)) I could then add anything to the contract I like, if it would not be illegal to do so.

For example an often seen example the renter, where you just need a flat, and well I could put anything in the side rulings. However here in europe in example just because of this reason renting law is rather strict. And of course it's a forcing law meaning you cannot override it in contract, or else it would not make any sense.

Re:How is an open-source developer liable?

[gowen]

Boxing is a sport and not a contract.

But the competitors sign a contract.

And even there if I kick your balls, during a boxing round, you would still be able to sue me.

Because the contract says you can punch me, but not kick me.

Re:How is an open-source developer liable?

[Shimbo]

Since when are people who donwload a GPLed project customers?

When they pay money for it. So that's more or less anyone that uses SuSE.

It's not a particularly surprising report. I never considered for a moment that the waiver of fitness for purpose was legal. You don't need to be a lawyer to figure that's likely to be true.

What next, 'EULA prohibition on reverse engineering found in 90% of commercial software likely to be illegal just about everywhere'.

Re:How is an open-source developer liable?

[inc_x]

I suggest you read the GPL before you license your work under it. By placing your work under the GPL you offer *any third party* a license to your copyrighted work. So you potentially establish a legal relationship with many people and such legal relationship may result in some sort of liability.

The article points out that even if it is IBM who sells the software to their customers, the rights granted by the GPL are directly granted by you to these customers. (My example, the article doesn't mention IBM :-)

On the bright side, the article mentions that this liability is probably limited to severe negligence and malintention only, depending on the situation, so it shouldn't pose any problems in practice.

Re:How is an open-source developer liable?

[anshil]

gowen I still highly doubt the existence and legality of such contract clauses.

I mean when doing any sport you have to calculate being hurt in normal ways the sport acts. This also includes blue spots in example at football. Don't tell me blue spots in football are illegal if not done by contract.

Even in boxing all we agree on is doing normal boxing sport. I don't know of any clause that allows me to punch you anyway beside the normal boxing sport goes (even in the ring, for example punches beside the rounds).

Put to get end it, beside this speciality of normal hurting during a sport, there are clauses that are obviously illegal, and they are not valid even if written in a contract, and signed by both parties.

Examples are: Ownership of persons (slavery), dealing with forbidden material (drugs), commissioning of illegal actions (assassin), generally anything violating the basic rights,
and in general everything violating general morality (prostitution).

And as special example this whole story is about. In europe it is illegal for companies when doing deals with consumers, to refrain from warrenty. Beside that there is a whole set of laws for company-costumer deals, which is called are costumer-portection-laws.

These are devided in generally in two major parts, that are first things that are generally illegal, and other things a company needs to proove they explicitly negotiated them with the costumer (general terms and conditions are never negotiated explicitly).

For example there companies right to resign from the deal without giving a reason needs to be negotiated explictly.

A withdrawel right by deals done outside the rooms of the company (street and door deals).

A withdrawel right by violating of important cicumstances. (A window seller tells there where never magisterial approval problems with these windows, but your approval gets voided).

Or another important example is the company agreement in a stock corporation. Normally association right is substitable, meaning in your contract you can make any rules different from the law which suit best for you and your partners. However in a stock corporation this is different. When you buy stock nobody can demand from you to read the company agreement of any company you hold shares of, you often even can't access that document. So you must be able to trust that the stock corporation behaves just like it is defined by law for such corporations. So stock corporatoin law is a forcing law.

However I must say all I know is the european right system (based on the roman right system), in the US which bases on the british common law things may be different. I don't know them both too deep, but as far I could form an opinion, I think our roman law system is by far superiour in contrast to the comman law chaos.

Finally...

[Eric(b0mb)Dennis]

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

[christophe]

...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.)

"brave men around RMS"

[Rehdon]

You sure have to be brave to stick around RMS ;)

rehdon

What about MS EULAs then??

[jkrise]

"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 "
As if we understood shorter, crisper or clear MS EULAs for that matter. Or even the FAQs written for JoeServicePacks after every 'critical' alert.

Early bird catches the worm. The rest get Service Packs.

Re:What about MS EULAs then??

[Anonym0us Cow Herd]

Early bird catches the worm. The rest get Service Packs.

I thought only the early birds who ran Outlook got worms? Now I'm confused.

I also didn't realize that getting a worm and getting a Service Pack were mutually exclusive. Maybe that points to the underlying motivation. If it ain't broke don't fix it. If you aren't getting worms, then you need a Service Pack to correct the situation.

And you failed to mention anything about who gets the BSOD's?

Re:What about MS EULAs then??

[JimFromJersey]

The early bird may indeed get the worm, but the second rat gets the cheese

Re:What about MS EULAs then??

[Hognoxious]

(From the link - Microsoft's linux killer)
"However, now that NT has been retired, what is Microsoft going to do with the ageing operating system's source code?"

It won't be wasted - they must be developing a replacement for XP.

Re: babelfish is yoda

[x-guru]

It to me appears that talking like Yoda babelfish
is...

Agree does anyone?

x--

interesting point: language

[73939133]

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.

Re:interesting point: language

[73939133]

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 :-)

Re:interesting point: language

[j7953]

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 the contract must be understandable. Those parts of a contract that the consumer cannot be expected to understand are not valid. There are probably court decisions that have ruled that this requires standard form contracts to be written in German (which is a reasonable requirement, I think).

However, this doesn't matter. For example you don't need to agree to the GPL in order to use GPLed free software, the GPL even explicitly says that. Of course if you don't agree to the GPL you only have those rights that copyright law grants you, so you cannot modify, copy or distribute the software.

This is one of the strongest features of the GPL: it only gives you additional rights. If someone claims that the GPL is not valid because they didn't understand it, then they also have no right to copy, modify or redistribute the software because they don't have a contract granting them that right. License agreements for proprietary software are also of questionable validity in Germany for the same reasons, but the fact that the Microsoft Windows EULA I "agreed" to isn't valid doesn't mean that I may modify or redistribute Windows.

The same thing is probably (IANAL etc.) true for other free software licenses, if you don't agree to the license, e.g. because you don't understand it, you can still use the software. If you legally obtained it, copyright law allows you to use it, and the copyright holder intended it to be free anyway so he won't sue you for using it. But you don't have any of the additional rights.

Re:interesting point: language

[73939133]

This is one of the strongest features of the GPL: it only gives you additional rights.

Not quite. There is the bit about "no warranty". If the recipient doesn't understand that, the author could be in trouble. Furthermore, given the way the software is distributed, a court could conclude that a reasonable person, in the absence of a comprehensible contract, would assume that the software was public domain.

Re:interesting point: language

[j7953]

Not quite. There is the bit about "no warranty". If the recipient doesn't understand that, the author could be in trouble.

Yes, but since the recipient doesn't have to accept the GPL, the author could be in trouble anyway.

Also the no warranty clause is quite certainly invalid in Germany anyway. But I don't think this is too much of a problem. The common legal opinion in Germany as far as I know (IANAL etc.) is that users have the responsibility to create daily backups, and that software doesn't have to be completely free of bugs. So the maximum liability that a developer could have is for the damages caused by one day's lost data.

And of course a lot depends on how you market your software. You're not liable for things you didn't promise. If you write a database next weekend and advertise it as an enterprise-ready database system, then you might get into trouble. But if you publish it as a development release of your hobby project, then if a user choses to use it anyway it's his own responsibility.

Really, I wouldn't worry too much about this. Developers of custom software have the same "problem" of not being able to disclaim all warranties (in fact the situation is even worse for them because there is almost never a vendor between them and the customer), and there is no massive amount of lawsuits against software developers in Germany.

Furthermore, given the way the software is distributed, a court could conclude that a reasonable person, in the absence of a comprehensible contract, would assume that the software was public domain.

Not really. With that argument, all web sites would also be in the public domain because they're distributed in the same way.

Re:interesting point: language

[booch]

There's a German translation of the GPL. It's not an "official" or legally approved translation. But I don't see any reason that you couldn't license your (new) software under a German version of the GPL. Even using the English version, the availablity of the German version should probably be sufficient to guarantee understanding.

Re: babelfish is yoda

[Artifex]

No. The AC actually pasted that without attribution.
It's been around for quite some time.

See here for many more references.

Re:Thats not good

[Anonymous Coward]

it's "heise" news. It's actually pretty much the only IT-specific news publisher that isn't Scheisse, even if some facts they report are Scheiße (such as anything SCO-related. The two first letters of sco actually mean Scheisse)
And since recently, there's also a special "heise security" news about IT security:

heise newsticker:
http://www.heise.de/newsticker/


heise security:
http://www.heise.de/security/

Them crazy germans!

[Anonymous Coward]

yaeh, yeah, I'm german myself.. but I just wanted to say that once :)

Have read the 100 pages

[SerpentMage]

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 be the precursor. I really wonder if the supporters of this paper realized that.

Next because of the AGB conditions people who distribute the software may be liable. Likewise people who originally added something, but did not sell. In general this is part of the German AGB that exists for everybody. But again, if the German AGB really applied for software the MS and co have some serious dodo coming their way.

Did the article raise FUD? Not really. It just said things as it was. Again, I want to stress if the GPL is held to the AGB then it will be only a couple steps further for EULA. And then the lawsuits will fly because generally GPL people have no money. EULA companies do.

What I also found interesting is inspection of the GPL viral aspect. The article stated that the GPL was worded for the American Legal system, which means it does not necessarily apply to the German legal system. And the viral nature is something that is entirely vague with respect to German Law.

Consider the following. A programmer works for a company. The programmer creates a piece of software. Who owns the software? Is it the programmer or is it the company? The GPL and the German law on owner of the code conflicts here.

Also the GPL viral nature has limits. For example it is postulated that if you develop a larger piece of work and incorporate a GPL piece of work that maybe you do not need to GPL your work. The test is whether or not your application depends on that piece of software.

For example lets say that you write a database app. If you rely on MySQL using ODBC then you do not need to GPL your software. Granted this is a duh case. But the hint here is dependency. And what makes this especially dicey is the fact that software world lives in a derived world. Remember when using API's you are creating a derivative piece of work from a legal point of view.

I think it can be entirely summed up as, "THE GPL HAS NOT BEEN LEGALLY TESTED". However, what concerns me is that if the GPL is tested then so will other licenses. And that may result in things happening that maybe people did not want to happen...

Re:Have read the 100 pages

[12dec0de]

Again, I want to stress if the GPL is held to the AGB then it will be only a couple steps further for EULA

The case is quite simple on that: 'Wandlung' or 'Nachbesserung' are the two terms that apply to GPLed software alike (this is AGB-contractual law here, not strict liability): IF you buy a piece of software and it is flawed, the customer may either ask the money back ('Wandlung') or ask the producer to improve it after the sale ('Nachbesserung'). This is law and no EULA or GPL may take this away in Germany.

But does this apply? No, M$ will quite gladly give back the money. People just choose to eat crud without ever complaining about it. And for the GPLed software you never paid anything, thus you are free to delete it, but you get nothing back.

As far as further liability is concerned, only gross negligence will get you liable, and both the EULA and the GPL basicly say 'never do anything dangerous with it, we are not sure it will work'. Thus without predemdiance, which YOU will have to proove there is nothing you can do about it.

Re:Have read the 100 pages

[SerpentMage]

While one could say, it only applies to money back, the paper from what I saw put it into a broader context.

For example lets say somebody gives you a free car. So you take that free car and you realize it is a piece of crap. Because the car is free does not free you from AGB. What it means is that somebody who gets caught with a problematic car can ask to be compensated for the problems it caused.

Now about the gross negligence, well that is what I saw the AGB was aimed at. Right now that aspect of software is not enforced, like it is in other fields. This means if it gets enforced in GPL, which the closed source people would love, I am thinking it has the boomerang effect of directly affecting the closed source people.

The AGB does not allow you to cop out like software has and has not been enforced...

Re:Have read the 100 pages

[pbuxton]

Consider the following. A programmer works for a company. The programmer creates a piece of software. Who owns the software? Is it the programmer or is it the company? The GPL and the German law on owner of the code conflicts here.

German employment law and the contract between the hacker and the suit would determine ownership. This issue applies in a sphere prior to the GPL. Only the copyright owner may release code under the GPL. BRD law, or US law, or insert-country-here law, determines the copyright holder.

Also, as for your API example, the GPL has a definition (sect. 2) of derived work. API's are generally understood to function as borders and barriers as well as enablers. The LGPL was created, in fact, exactly to address that issue. If your app uses MySQL through ODBC, it stands to reason that it could use almost any SQL plugin, OSS or proprietary. That counts as a stand alone work, and is not derived per the GPL. If German law says much different, then I guess MS owns all programs using the Win32 API that have ever been distributed in Bundesrepublik Deutschland.

Re:Have read the 100 pages

[arkanes]

And what makes this especially dicey is the fact that software world lives in a derived world. Remember when using API's you are creating a derivative piece of work from a legal point of view.

I'd be astonished if a German court actually decided this. It'd mean that whoever owned an operating system also owned rights to all software developed for it - basically SCO's case (heh!). It'd be the death of the software industry in Germany, and probably of IT development in general.

Re:Have read the 100 pages

[SerpentMage]

Well you see here is the problem. The GPL definition of derivative work is based on an American idea of what derivative work is. That might not be the same as what a German court says.

From what I gathered the term derivative work is more loose than what Americans consider derivative since general consensus in German courts have deemed it pretty loose. This means that in Germany a developer could integrate GPL software if the GPL software is generic.

Think of it as follows. Lets say a GPL piece of software provides financial calculations in the form of library. It is a generic piece of software that could be replaced by a piece of closed source. But the closed source costs money. Therefore even though GPL should apply, it does not. Why because using the reasoning of MySQL the interface is generic. If however the GPL says, nope it is specific and therefore GPL applies, then so would every OS call.

The key is, which has not been determined is what do you consider to be a derivative piece of software? The german courts have thus far said it is a pretty loose definition and hence in theory I could actually use GPL'd software in my application, so long as the GPL software is generic.

See the dilemna now? That is what the papers were raising...

Re:Have read the 100 pages

[Znork]

You appear to be misunderstanding the so called 'viral' aspect of the GPL. The GPL affects the code that is under the GPL, and only that code. You may write any code you want and do anything you want with that code, including distributing it, wether or not it depends on GPL software.

You do not ever 'need' to GPL your work. You need to abide by the terms of the GPL to obtain permission to distribute the work that already is under the GPL, but which apart from the GPL is already governed by copyright law. You can easiest fulfill those terms by placing your own software under the GPL, but there's nothing preventing you from fulfilling the terms by placing your code under for example the MIT X11 license.

However, if you do not want to abide by the terms of the GPL then you cannot distribute the GPL software. If your own code is useless and worthless without the GPL components, then, well, that's too bad.

As it is copyright that governs the right to distribute anything copyrighted, and the GPL governs the permissions to do things not allowed in copyright law, it doesnt matter if there's a conflict. The 'viral' nature is entirely governed by copyright law; either you have permissions to distribute the GPL code or you dont. If you abide by the GPL you do, if you dont you dont.

If the GPL gets overturned, or invalidated in court, well it doesnt change the fact that you still dont have any right to distribute the GPL code.

And, by the way, as API use is regarded as derivative work, as well as things like crt0.o that gets inserted into all binaries by the compiler, that's the reason these things are usually not under the GPL but rather LGPL or similar more relaxed licenses.

Re:Have read the 100 pages

[SerpentMage]

Having read multiple papers and the likes. I am thinking that the GPL while people think can be enforced is not enforceable. The LGPL is another story.

The problem that I see, especially with the SCO vs IBM case coming up, is what constitutes a derivative piece of software. I am even thinking that the viral nature of the GPL might not even be enforceable.

I think it really depends on the law and the interpretation. Interestingly enough though in the German courts it can be asked that an interpretation be defined.

Re:Have read the 100 pages

[Znork]

Can you explain why you think it would not be enforcable? What legal aspect would give anyone the legal right to distribute copyrighted code licensed under the GPL?

The SCO vs IBM case has some bearing on it, but the cases are very different. Lets look at the cases in a simplified way:

GPL:

You have copyrighted GPL software A.

Then you have "derived code" B

The GPL says that you may distribute A if, and only if you fulfill the terms of the GPL, and that means B being licensed with terms as free or freer than the GPL. To distribute (A+B) you must fulfill the GPL. You can still distribute B in any way you wish, as you hold the copyright to it and may license it in any way you want, but if B is "derived" from A it may not make much sense to do so. Still, the GPL does not claim any rights whatsoever to control B, only the terms under which you may distribute A, enforced through copyright.

SCO (in the case of some of their allegations):

You have SCO software A.

You have IBM copyrighted work B.

You have Linux kernel C.

IBM has a right to distribute A, licensed from SCO. They have a right to distribute (A+B). However, SCO tries to claim that they have a right to limit IBMs distribution of B by itself, or in the combination (B+C), something entirely different from what the GPL does. The mechanism of law under which they wish to limit IBMs right to their own code B is unclear. Unlike the GPL they are trying to extend control to code they do not hold any copyright to.

Again, the GPL allows you to do things not allowed under copyright, under its own conditions. SCO tries to stop IBM from doing things they do have a right to do under copyright. That means that SCO has to convince a court in a civil case that they should have the right to control code they do not own, while the GPL automatically falls back on copyright which is well tested in court as it never tries to extend beyond copyright.

Re:Have read the 100 pages

[bnenning]

Remember when using API's you are creating a derivative piece of work from a legal point of view.

IANAL, but I'm almost certain this is not correct. Is every Windows app a derivative work of Windows? I've written a program that builds and runs on Mac OS X and GNUstep. Is it a derivative work of both?

Re:Have read the 100 pages

[MrResistor]

See the dilemna now?

No, because in a circuitous way you said exactly the same thing as the post you were replying to.

Re:Have read the 100 pages

[thisgooroo]

> Consider the following. A programmer works for a > company. The programmer creates a piece of > software. Who owns the software? Is it the > programmer or is it the company? The GPL and > the German law on owner of the code conflicts > here. what has that to do with the GPL? the GPL doesn't touch the ownership of the code. it grants you the right to redistribute the code you picked up with your modifications provided you distribute it under the GPL. you still own your code and can distribute it anywat you like, but not with a conflicting license together with the code you picked up

Too bad for Germany

[JordanH]

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.

Re:Too bad for Germany

[lederhosen]

You do not need a license to use GPL software,
only to distribute it, the problem is not for the
consumer, it is for the distributer that can not opt
away their warranty and such things, i.e. you seem
to be liable even if you give it away for free.

The study is not about the GPL at all

[heironymouscoward]

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.

BSD Dangers?

[MonkeyDluffy]

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.

So, if you are an author/contributor of some open source software, you don't have to worry about liability, if you are giving it away for free under the GPL. And companies like Redhat are not selling GPL'd software, they are selling a service of conviencence, so they are arguably safe. But what about a BSD type licence? Someone can sell that, so that it is no longer given away for free. So, even though you are a developer, and have not been compensated by the company selling your software, are you legally in the clear?

-MDL

Summary starts on p. 104

[Get Behind the Mule]

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. %^)

Re:Summary starts on p. 104

[j7953]

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.

So what? As a user, you're not required to accept the GPL anyway, see section 5: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works."

So, I don't see a problem here. If you just want to use the software you could simply not accept the GPL and then liability would be covered by the normal laws. Now this study says that the liability exclusion is invalid and therefore the normal laws apply. I don't see a problem here.

Re:Summary starts on p. 104

[Anonymous Coward]

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?

No, the copyright is with the authors or their employers, unless they sign it over to somebody else (for example the FSF in the GNU project).

Re:Summary starts on p. 104

[Ioldanach]

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, this means that projects can't switch to a different license, such as a proprietary one, without contacting all of their contributing developers.

Re:Summary starts on p. 104

[shadowpuppy]

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?)

No the GPL requires that the code be "Free as in Freedom". Whether people are paid to write it or charge you for a copy is completely irrelivent. What is required is that the source code be available and that it be distributed under the GPL. This way when I get a copy I can distibute it to my friends.

Re:Summary starts on p. 104

[stefanb]

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 is no such thing as a "copyright holder", as far as I understand it; there's the author(s) and possible licensees of a work.

Because you cannot waive authorship, or "assign" it to anybody, you and every other contributor automatically form a common law company. So if you want to sue someone (for GPL violation, for instance) you can only act with the consent of every author of the work, or at least, you have to establish that none of the authors objects. This is not easy. So it might be that someone violating the GPL in Germany will get away easily.

On the other hand, if someone wants to sue the makers of the work (it's borked), he only needs one of them, as the common law company is represented by any of it's owners, and the plaintiff can go after any one of them.

Now, IANAL, so I have no clue how theoretical any of this stuff is...

Re:Summary starts on p. 104

[root 66]

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.

That's why GNU projects require authors to sign their copyright over to the FSF I think.
Not only because the FSF wants the software to stay free, even if the original author says "not anymore" - but also to more effectively protect the software as well as the authors.

Re:So what if GPL is invalid? - No big deal

[LinuxXPHybrid]

> Companies like MS can steal GNU / Linux code and put it in their kernels?

Companies like Microsoft do not have to follow GPL if they were to take code from, say, Linux. I am not speaking sarcastically, I honestly believe that, even in US, GPL is not exactly enforceable. But if we look at companies like IBM and Oracle, even though they have power to not follow GPL, they decide to follow GPL. They contribute back to the community like GPL says. And they are doing not because Richard Stallman tells them to do but they believe that they can win that way and they get more benefit than not follow GPL. I think that that's the whole point here. Bottom line, GPL is not a law in any country; breaking GPL is different from, let's say, not filing tax properly or killing people.

It is not enforceable in Germany, and so what? If GPL presents a valid idea and it truly creates win-win situation for everyone involved, it will be adapted.

Other problems with GPL vs. german law

[__past__]

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?

Re:Other problems with GPL vs. german law

[fatbofh]

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 only the copyright holder can sue over the licence. You don't have a couple of lawyers on staff, but the FSF does.

Re:Other problems with GPL vs. german law

[mdwh2]

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 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?

No idea, but one question that springs to mind is how do software companies in Germany operate - do software developers employed by companies still retain the copyright to what they write?

Re:Other problems with GPL vs. german law

[Make]

No idea, but one question that springs to mind is how do software companies in Germany operate - do software developers employed by companies still retain the copyright to what they write?

The grandparent is right, here in Germany you cannot transfer "Urheberrechte" (copyright). But you can transfer "Nutzungsrechte", i.e. rights to use/modify/distribute the software. When you sign a contract as programmer, you keep your copyright, but you give away everything else.

E.g. you cannot sell the rights to keep your name in the source code - your company must not remove your name if you demand them not to.

Maybe you can deduce from this that you can GPL your software, but you can't put it into the public domain like grandparent said.. interesting thought, really.

Re:Other problems with GPL vs. german law

[__past__]

I bet there are quite some organizations that write GPLed code and have lawyers. Not to mention that they are still the copyright holders of the code they wrote themselves.

At the end of the day, integrating a contributed patch in, say, libreadline is not different from integrating libreadline in a bigger app. In both cases, you are bound by the license terms chosen by the original author of the code you want to use.

The FSF itself recommends to do as they do, i.e. to ask contributors to give up their rights. However, I don't expect them to put libreadline in the public domain so I have an easier standing in court if I want to enforce my license.

That combined with their track record of trying to force free software projects to use their licenses even if the authors would rather use a more liberal one doesn't make them look good. The FSF, and the GPL, are an attempt to artificially build a community primarily based on legal threats, not consent. Maybe that was a good idea decades ago when all of RMS' colleagues went to work for Symbolics, but now it is an anachronism. We don't need it anymore, and it's a hassle for huge parts of the free software world.

Re:Other problems with GPL vs. german law

[stefanb]

Do software developers employed by companies still retain the copyright to what they write?

No, because they do their work for hire; they're technically not the authors of that work.

As a free-lance programmer, you usually would do the same. You also could develop a piece of code and give your client an unlimited license, but keep the authorship.

Re:Other problems with GPL vs. german law

[lowar]

No idea, but one question that springs to mind is how do software companies in Germany operate - do software developers employed by companies still retain the copyright to what they write?

Yes they do, but in German Law (actually a variant of the droit d'auteur) there is a difference between Author's Rights and Usage Rights. So the developers can keep their Author's Rights (e.g. to be known as the author) and the company gets the Usage Rights (and can do what ever they will with the software).

Re:Other problems with GPL vs. german law

[Anonymous Coward]

fun question: why is the GPL not good enough for them?

Because Stallman is cannot tolarate the standards which he preaches within his organisation. He has an insationable lust to be in complete control of anything he works with, ie he has predisposition to despotism and tolitarianism. I've always wondered if the "board of directors" at the FSF has ever gotten into a disagreement with him and won.

Re:Other problems with GPL vs. german law

[Anonymous Coward]

Stallman can't compromise so he resorts to coercion.
Unfortunately "this genius" is incapable of comprehending the long term damages that are often the result of this strategy. He talks of evil "outsiders" destroying his vision but ultimately his own tactics do more damage to his vision than does anything else.

Re:Other problems with GPL vs. german law

[stefanb]

Mod my previous response down; it's wrong.

Do software developers employed by companies still retain the copyright to what they write?

According to the study, this is the law in Germany. However, although the employee is the author, the employer usually gets full exploitation rights for the work; the author has to be "properly compensated".

The main contention in the study seems to be about the GPL's language of "author", and the subsequent inability of the author (as employee) to force the employer to stick to the GPL (the employer has full rights to sub-license any way he wishes).

Re:Other problems with GPL vs. german law

[Error27]

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?).

It lets them protect the software. The FSF deals with around a dozen GPL violations a year. They can go to the company in question and tell them, "Hey we can settle this out of court and public view and you won't be sued. We just want you to release the source." With the kernel no one owns the source, so no one can make a deal like that.

If you violate the GPL for the kernel thousands of people could sue.

Re:Other problems with GPL vs. german law

[Znork]

"We don't need it anymore, and it's a hassle for huge parts of the free software world."

We dont? I myself havent noticed any significant improvement in the ethics of software companies, nor any massive movement towards supporting the advancement of the commons over the advancement of the individual corporation, nor any tendencies towards relaxing copyright, or consensus to avoid security through obscurity, or increased desire on the part of corporations to solve individual problems for specific users in COTS software, or any major move away from Embrace and Extend tactics, proprietary extensions, vendor lockin and bait'n'switch tactics.

In fact, I'd say free software is more needed than ever, and that free software needs all the protection it can be given. The GPL builds a community of software that is protected and guaranteed Free.

The legal "threats" are a consequence of copyright law, and will have no power when copyright law has no power. When copyright law has no power I'll be happy to agree we dont need the GPL anymore.

Re:Other problems with GPL vs. german law

[Elwood P Dowd]

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.

Re:Other problems with GPL vs. german law

[Anonymous Coward]

a dozen GPL violations a year^H^H^H^Hquarter.

Re:Other problems with GPL vs. german law

[thisgooroo]

contrary to other free licenses, the GPL tries to assur the right of the end user to modify a program he gets hold of according to his needs. id somebody picks up a BSD licensed program, modifies and distributes the derived work under a more restrictive license (w/o source), the user is at the mercy of the distributer to get bug fixes or modifications he meeds to adapt the program to his needs. the GPL is designed to remove this dependency. btw, the FSF forces projects that *use their code* to use their license (as is their right). i haven't heard of any attempt by them to force others (the *BSD projects, Xfree86) to use their license. can you provide an example for your claim?

EU Law

[Anonymous Coward]

would the (L)GPL stand up under EU law, and isn't this applicable also to germany. In EEC member states EU law is paramount, and EU courts are the highest courts.

Standard legal procedure

[panurge]

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.

Re:Standard legal procedure

[sheldon]

The opinion of one lawyer is worth at least 100,000 hits on slashbot!

Abbreviation

[beders]

For future similar articles.

IANAGL = I Am Not A German Lawyer

Re:Abbreviation

[Conspiracy_Of_Doves]

Dude, when I first opened the page, I did a search on "IANAGL", knowing, KNOWING that I would find something. lol

Re:Abbreviation

[MeanE]

Daum...

And here I was thinking it meant "I am not a Graphics Library"

Bfish the GPL to German

[Anonymous Coward]

is a fun GPL translation courtesy of bablefish

I wonder is English>German translation sounds as convoluted as German>English.

Hey! FUD in German is FUZ: Furcht, Ungewißheit und Zweifel (babblefishing)

neet.

Re:Translation + complexity

[grolaw]

As a lawyer who has had at least one NAFTA case with that nasty neighbor to the north (oh! Canada), and with the proviso that the last German language course I took was 1976, the abstract translation seems to be accurate. I will to try to read this in much more detail (with my German reference texts) and I'll probably send a request off through Lawprof (tm) to see if an English translation exists.

The upshot is that the GATT, NAFTA, WTO, Berne Convention treaties and EU / German substantive law and US statutory and common law will all play a roll in how the license(s) is (are) applied and interpreted. This document is a preliminary examination by a legal scholar of the emerging field and it should prove quite helpful simply by analogizing existing precedent with the intent of the GPL / Open Source concept.

From a legal standpoint, this is the same as asking a lawyer from the 1700's what laws apply to aircraft. We are just finding out that there are Aircraft!

Open Source is a radical idea - nobody and everybody (who contributes) owns much but the right to expand the existing public code. "Owning" things is what law is all about and a collaborative effort without a clear owner (legally speaking) is a real problem where someone might claim open code as their property (I don't know if the SCO / IBM / Linus T issues have reached the point yet, but It appears certain that the resolution will turn on who created what and when...)

Just add:

[Anonymous Coward]

"This program may only be used in countrys where this license is fully valid."

or, to be on the sure side:

"This program may not be used on earth."

What now, Mr. lawyer? :)

wth?

[TrekkieGod]

From linked article:

If federal officials decide that Linux merits the same export controls as Unix, experts fear that could end development of Linux by the open-source community.

What's that all about? Why wouldn't development of the export controlled sections of linux not continue to be developed in a whole bunch of non-US countries?

Comments like that one piss me off...

???? "expected" ????

[AftanGustur]

Developers may be held liable if software does not work as expected, ...

As **EXPECTED** ?????????? Can you even remotely begin to understand this means for Microsoft ??? (Or any other software company with deep pockets.)

Re:???? "expected" ????

[Minna Kirai]

Do you mean that Microsoft might be at some kind of financial risk?

Why? Since the days of Windows3.0, we've all developed low expectations for Microsoft code. Nobody expects their software to even keep running for more than 4 hours at a stretch. If it works at all, we feel lucky.

If you go into court blaming Microsoft for losing your valuable data, the judge will laugh at you. Expecting a Microsoft product to be reliable? That's the negligence!

Because SCO as an operating system company

[Anonymous Coward]

Presumably, SCO is an expert at operating system (they must be; they claim they invented every one at this point), and so for them to have the source code to an operating system, be involved with the code in a meaningful way (which they claim they were), and to then claim ignorance over a process in which they participated stretches the boundary of credibility.

Businesses aren't like individuals; it is assumed the business takes care and practices due diligence in its core competency.

Either SCO is stupid or lying in this case, and it doesn't matter, they lose.

Re:Because SCO as an operating system company

[tony_gardner]

The current Linux kernel has what, 2.5 million lines of code? Assuming a coder can check one line per second it will take about 700 hours to check. Or about 30,000 USD. Now, do you think that it is reasonable to have a "Linux tax" of 30000 USD on any conpany which wants to have anything to do with the Kernel?

What if this number is more like 300,000? 3 million? At some point, it is not reasonable to check each line of code. The question is on which side of that point SCO was when they started to sell Linux.

Re:Because SCO as an operating system company

[Reservoir Penguin]

30K is not unreasonable for a compnay that claims its IP is worth multiple billions $$.

Re:Because SCO as an operating system company

[arkanes]

They aren't claiming thats how much thier IP is worth, they're claiming thats how much money IBM has made off of Linux & AIX, and that they deserve all that money.

Re:Because SCO as an operating system company

[Hognoxious]

The current Linux kernel has what, 2.5 million lines of code? Assuming a coder can check one line per second it will take about 700 hours to check.

If it was as simple as looking for comments like

// this bit pinched from SCO nwahahahah

then you could do it with grep.

GPL doesn't apply to users.

[Politas]

I don't read German, so I may be missing something, but all the points I've seen mentioned are talking about a user's rights to claim for damages.

So what does that have to do with the GPL?

The GPL is a licence to distribute, not a licence to use.

Surely this would be a far tighter contractual arragement. If you want to distribute GPL software, you must agree to the licence, and thus the reseller indemnifies the developers.

You might be able to sue the person you bought your GPL software from (say SuSE), but you couldn't sue Linus, or if you did, Linus could sue SuSE in a counter-claim.

Re:GPL doesn't apply to users.

[Royster]

The GPL contains a disclaimer of warrantee. It is perhaps the weakest part of the GPL because, under some interpretations of contract formation, it may require an assent to be valid.

Everything else in the GPL is concerned with the rights guaranteed to the author by copyright. They are on a

The question of who you could sue isn't as clear cut as you think. It involves complicated questions of jurisdiction which vary from place to place.

Re:GPL doesn't apply to users.

[Politas]

Yes, but it is a disclaimer of warranty from the developer to a distributor. Since standard laws do not allow you to distribute software, I think that distributing GPL software would amount to assenting to the GPL.

The GPL does not apply to users, so it's pointless arguing about how the GPL doesn't protect developers from user claims. You don't need to agree to the GPL in order to use GPLed software. It is not a EULA.

My opinion would be that oly a distributor would be liable in the end. Minor developers are providing the software at no cost, so an end-user wouldn't be able to sue them for problems, or at least, they wouldn't be able to get very much. Their only redress would be to a reseller who made claims about the abilities of the software.

Re:Spindler?

[Winterblink]

Iirc, CSM's last name was Spender.

what do you expect from Bush and Ashcroft

[Anonymous Coward]

OMG - DMCA and Patriot act!!! They have taken over illegally and are going to try to stop Linux since M$ pays them!

Oh wait, this is in Germany. Never mind.

Re:So what if GPL is invalid? - No big deal

[Anonymous Coward]

MS can take GPL code and use it for their purposes, just as well as I can take a copy of MS Office and use it for my purposes (e.g. making copies and selling them).

Both can be done, and both is illegal. Even if the GPL is unenforcable, copyright law not.

German legal system eh... ?!

[supersam]

Here's a shining example of the same German legal system. Enough said!!

Re:German legal system eh... ?!

[Lord Azrael]

Here's a shining example of the same German legal system. Enough said!!


at least in germany no 6 year old boy gets banned from school and sued for kissing a girl.

Re:German legal system eh... ?!

[cbv]

Here's a shining example of the same German legal system. Enough said!!

Why should having sex be illegal?
OTOH, running into a road-sign and fleeing the scene (hit and run) is a misdemeanour. And that's what got him into trouble.
Having sex in public may be against your (as in "you in general") personal moral code but can only be prosecuted if there's a "third party" that notifies the police and you get caught while "doing the deed".

Re:German legal system eh... ?!

[supersam]

errr... who said anything about a moral code?! we're talking about having sex while driving at 60 mph!!

Gross Negligence

[ajs318]

The author of free software grants you the explicit right to scrutinise the source code; therefore, in case of dispute {"Your software messed up my computer and I want payment!"} then there is a simple response: You could have known it was going to do that if you had read the source code.

Examining the source code comes under the heading of "due diligence". If an Open Source product breaks, then the negligence is on the part of the user, not the author.

If you read the instructions that come with proprietary software, they all tell you to back up your entire hard drive before you install the software. Even if Certain Operating Systems didn't intentionally make that impossible {so you can't follow the instructions to the letter, which might make those applications No Good anyway} I don't see that backing up an entire HDD is any less a ball-ache than reading several hundred pages of source code.

If you don't want to examine the source code yourself, you have to rely on other users' experience through the various forums that exist. Other people will have had experience, good and bad, with whatever software you're thinking of installing and, being the Open Source community, they will want to share it. Otherwise you're not really doing anything better than clicking an attachment in an email whose subject starts with "Re: {something you never sent}" and which originates from a total stranger.

Re:Gross Negligence

[arkanes]

You'd have a hard time convincing a court that it's due dilligence to do a software audit before compiling and installing it - particularly if installing with the developer-provided makefiles. If you distribute binaries, I don't see how you'd have any case at all.

You'd probably have a hard time convincing them that backuping up your hard drive was due dilligence, either - in any case, I've never seen installation instructions for an open source program that told you to do either of those things. In fact, I can't think of a closed-source program that does either. (I'm not counting operating systems as programs in this context). Usage instructions for partitioning software generally say you should back things up (as they should).

I'd be willing to be almost any amount of money that you aren't intimately familiar with the source code for any reasonable amount of the software that you personally use. In fact, I doubt that you've even read all of it - it'd take years for a system of any reasonable size. To expect every user of open source software to do that is ridiculous.

Re:Gross Negligence

[inc_x]

I don't think that any European court will hold that it can be reasonably expected from end-users that they examine the source code of the software they use. One reason would be that such behavior isn't common practice, another reason that such users can't be expected to have the necessary skills.

However, a court may expect such behavior from companies such as SCO and IBM that redistribute such code, especially if they have a commercial interest in that redistribution.

Re:Gross Negligence

[ajs318]

Sorry, but I don't buy that - it's purely and simply a cop-out. It seems like the only reason you ever look any further than the end of your own nose is when you're looking for somebody to blame.

When you buy closed-source software, you are paying for the supplier to promise that the software works. {Which is why I find it so unacceptable that such software should be allowed to be offered without warranty -- and I don't use it}.

When you use open-source software, you are not paying anyone for it. You, and only you, are responsible for it.

Browsing the web, e-mailing and doing your accounts on a spreadsheet, are non-critical applications. Nobody is going to get hurt if anything like that fails. But if you want to do anything important with your software, then you have a responsibility to whoever you could impact.

If you don't want to examine the source code yourself, or you don't know how and haven't the time to or aren't prepared to learn, then there are people who will do so for an appropriate fee.

And, of course, the Developer Community are always reviewing one another's code, deliberately or otherwise. There are no secrets in the Community. There are discussion fora, newsgroups and mailing lists devoted to the dissection of free software.

It takes money or it takes graft, but either way it takes. You may not think it's fair, but that's the way it is in the real world.

Re:Gross Negligence

[Arandir]

Customer: My Mercedes Benz blew up in my driveway, severly injuring my dog.

Daimler-Chrysler: Your honor, the plaintiff failed to excercise due diligence by failing to disassemble the automobile and examine each individual part before using said automobile.

Re:Gross Negligence

[ajs318]

Customer: My Mercedes Benz blew up in my driveway, severly injuring my dog.

Judge AJS318: Tough titty. Deal with it. Ting! Next please.

Oh no, not me

[Anonymous Coward]

Everytime I run a german article through the fish my computer goes bezerk and sends my browser to terraserver to pull up maps of Poland.

You don't need to agree to the GPL when installing

[tjwhaynes]

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 would not have the rights to do this (copyright remains with the software's author) so you either agree to the (L)GPL and distribute or you are bound by the copyright laws and can't distribute.

The strength of the (L)GPL licenses lies in expanding the rights you normally have beyond the restrictions provided by the copyright laws. If the GPL can't be applied, then normal copyright applies and the software can't be distributed. Commercial EULAs usually require you to waive rights you would normally have had.

Cheers,

Toby Haynes

Funny, that.

[chthonicdaemon]

A German Professor of Law commenting on the GNU Public License... (GPL on GPL -- sounded funny at the time :-))

Re:So what if GPL is invalid? - No big deal

[ctid]

I honestly believe that, even in US, GPL is not exactly enforceable

I'm not sure I can agree with this, unless you mean that it is practically very difficult to get money out of organizations that are thousands of times richer than you are.

As a licence, I believe that the GPL is as strong as any other licence. Essentially, it says that it gives you more rights over the software than you would have if the licence wasn't present. Of course, you're not obliged to accept the licence, which grants you these extra rights. However, if you decide not to accept the GPL, the position on your rights to the software "falls back" to the default position, which is that you can't do anything with the software without breaching the copyright.

The GPL has been around for more than fifteen years, and not one organization has dared to challenge it in court. That tells its own story, I believe.

Short summary

[theolein]

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.

Re:Short summary

[Anonymous Coward]

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.

Does Microsoft's German EULA literally say as they do in the US EULA? I would be surprised if it did.

They have a legal staff over there that knows the workings of German law; I imagine that they'd try to wiggle out of as much as they could get away with without outright contradicting existing law andlegal interpretations, same as any other corporation.

Re:You don't need to agree to the GPL when install

[egghat]

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 German is describes possible implications of using and producing OSS. Some laws here are somewhat different to the US laws. 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. And bad from the liability point of view. Cause you are liable for your products. The licence doesn't matter.

Bye egghat.

I don't understand...

[LilMikey]

This guy seems to be arguing there is no liability for GPLed software but every EULA I've ever read (I think I read one once) on any proprietary software pretty much says the software developer, company, friends, and their dogs are NOT liable for any damages done by their software. Wasn't there even a Slashdot article recently covering the lack of liability for software companies?

In fact, from the Windows 98 EULA:
"IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (...)"

IN ANY CASE, MICROSOFT'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR U.S.$5.00"

So I guess they're liable for like 100 bucks. Or 5 if they were 'fairly competing' with Linux on price.

BTW, Slashdot lameness filter (caps) is itself, lame.

Actually

[hackstraw]

Has the GPL been proven (held up in court) in any legal system?

I thought I had seen somewhere that it has never really been tested.

Re:Actually

[filmcritic]

I don't believe it has because it was written in such a way so that it would be ridiculous to prove in court. If no one owns the code, there's no one to sue if it causes catastrophic damage. Isn't that conveeeeeenient??

I think someone called it VIRAL...

Maybe we need a GPL in addtion to the GPL

[carlos_benj]

Maybe we need a German Public License.

Re:good babel quotes, more:

[Anonymous Coward]

"...speak rough negligence to be present must."

and the beautifully rhymingly poemly extract:

"Open SOURCE uncertainly, both legally and technically,
Correctly. And implicit non-liability."

A babelfish a day keeps the boredom away.

Integrity of art work, liability, personal rights?

[Rares Marian]

Wow, I never would have imagined Europeans were this whiny. You cannot gaurantee those things. You can only choose to stay away from those who won't let you have those things.

Just because X made a work is no reason to prevent someone from changing that work in a random or meaningful way. Ouch my feelings are so hurt by your parody, you stomachs will burn in Hell, I triple guarantee it.

Just because someone is unwilling to provide support for a work, doesn't mean they shouldn't get to play in the market. That's why have people who make things and people who fix them. Cowards.

Personal rights? Since when is copyright a personal right? Talk about taking just about everything personally.

What about the EU?

[Maudib]

Doesnt the EU have copyright law/treaties that would override German law? I dont know what those laws are, but I am pretty sure that German law will soon be largely irrelevant once the EU starts implimenting its own copyright/IP laws.

I mean if the GPL is legit in France (knowing the french it has to be) and Italy, and the rest of the EU, then wouldnt the whole EU have to find some way to ensure consistancy?

Re:What about the EU?

[a_n_d_e_r_s]

You mean the EUCD the EU version of DMCA ?

Well, its on the rise, but, and its a strong but ,this is not about copytight law, it's about consumers rights.

Consumer rights are stronger in law in EU contries than US of A. They are there so that consumers have the right to sue for damages, when and if they occur. So first there must be damages and secondly the consumer has to sue because of the problems that occurs for this law to be tested and as long as poeple are making software without serious bugs it will never happen.

I.e. this is applicable for most EU contries not only Germany.

Re:You don't need to agree to the GPL when install

[Planesdragon]

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. And bad from the liability point of view. Cause you are liable for your products. The licence doesn't matter.

(IANAL-RU?)

In the states, you automatically own the copyright of anything you produce, save for works that are done for-hire--in which case, your employer owns them. (IIRC, you even own the copyright of illegal and unauthorized derivitive works--you can't DO anything with them, but neither can anyone else without going through you.)

You also have some degree liability for everything you do; if, for example, Linus decided to make a Linux distribution that gave him total control of your computer, he could be liable for it.

oh man that would be nice

[Anonymous Coward]

the fucking gpl needs to die some day anyway, maybe this will set the precedent

Who owns the code?

[Teancum]

Consider the following. A programmer works for a company. The programmer creates a piece of software. Who owns the software? Is it the programmer or is it the company? The GPL and the German law on owner of the code conflicts here.

First of all, the question is not due to the GPL, who owns the software, but rather who owns the software regardless of license and contract agreements. As a software developer myself, there is (unfortunately) a body of software that I've written that can never be GPL'd due to the fact that I did it as a work for hire. I've also participated in GPL'd projects, but I try to keep a clear barrier between the two side and work real hard to keep cross-contamination to a minimum.

The GPL does NOT specify that software rights are given up when you contribute to a project. A well managed open source project (using licenses besides the GPL as well) will try to get a formal statment, with a handwritten signature sent by snail mail (prefered), copyright assignment for all code that is submitted to the project. This assignment is made to a collective project organization, or if no formal legal corporate body exists then it would be assigned directly to the project leader. BTW, I said well managed open source project here, but this applies to any software project, even with draconian licenses like the MS-EULA. Usually this is spelled out in the employment contract, however.

This assignment can also take the form (with the GPL) of the author simply giving a formal license to the project leader under the GPL. As has been pointed out before on numerous occasions, the GPL is merely one of many licenses that software can be released under. Indeed, many open source project are released under multiple licenses.

Getting back to the question: If the ownership of the software is in doubt, I think the GPL part of the question is moot. Even the GPL itself (in the informative, not legal section) suggests that if you do software development for hire where the ownership may be in dispute, please get a formally written disclaimer to any software that is written. Existing copyright laws should govern who actually owns a piece of software.

I'd list to respond to this next point too:

Also the GPL viral nature has limits. For example it is postulated that if you develop a larger piece of work and incorporate a GPL piece of work that maybe you do not need to GPL your work. The test is whether or not your application depends on that piece of software.

On a simple level, if you incorporate ANY GPL'd software in another piece of software (especialy as source code), you have two choices, and only two choices:

1. Release the new project/software/updated changes as GPL'd software.
   
2. Remove the GPL'd software from your project.
   

Because of this restriction, the LGPL was written to allow you to link to software written under the LGPL as a library. Only changes to the library itself need to be released under the LGPL.

I'll admit that the area gets murky when you deal with distributed run-time linked software modules (drivers, COM/DCOM, CORBA, dotNet, etc.), and even RMS doesn't really know where he stands on how GPL'd versions of these software modules (in a rare show of a lack of opinion on a software licensing issue). The problem here is that the GPL simply doesn't cover this issue at all in the license, and if you have a project like this it would be wise to make an addemdum to the licensing agreement spelling out exactly what you want and don't want from the software, or get that information from the authors of the software (if you are using GPL'd software in this fashion).

From a practical viewpoint, if a software package is seperately maintained, has a seperate distribution system, and is only linked at run-time by the application, you are probabally safe.

Re:Who owns the code?

[SerpentMage]

Regarding the integration of GPL'd software. Here is where the courts have not decided.

Look at it as follows. Lets say I use MySQL from ODBC. Am I violating the GPL? The courts would say no because the ODBC connection to the software is generic and could be replaced by any other software.

Ok so now we have an exception to the GPL. Lets move this discussion a bit further. Lets say there is a generic piece of software that implements functionality already available in other pieces. Now comes the question if this piece of software is GPL'd and integrated does it mean that your software is also GPL'd? Looking at the case provided by the MySQL example the answer would be NO. This means so long as the GPL software is generic in nature and could be replaced with something else the GPL cannot be enforced.

Now you may be arguing, NO, the GPL is the GPL. Ah, well then comes the question, why is the ODBC connection different from a generic interface? And if a generic interface is GPL'd then ODBC must be GPL'd. Then legally speaking the argument is that all software including anything that uses generic libraries such as Win32 is considered a derivative work.

Here is the legal dilemna! The exact definition of derivative work has not been defined and right now it is considered very loose. This means unlike what you are saying that so long as the software is generic I can integrate however I please.

The catch is that whatever is decided can become a vicous double edged sword. If you say GPL is GPL then SCO has won its case. If not then SCO looses and the GPL looses as well in certain contexts.

Want a simple analogy. Consider a car. There is a part that you add to your car. It says that if you integrate the part then all parts of the car must be exposed as well. Well a law like that would never fly. Because it would mean every owner of the car parts would have to be informed and updated. Legally speaking the courts would look at this as a ludicrous rule within a contract. Remember anything can be written in a contract, but unless it has been proven it means squat. And contracts cannot supercede the law.

Re:Who owns the code?

[Minna Kirai]

Lets say I use MySQL from ODBC. .... Ok so now we have an exception to the GPL.

No, you have no exception. You have nothing at all. That argument is incoherent and meaningless (obviously English isn't your best language).

So you are using MySQL, so what? Did you intend to say "linked", which would have a specific meaning in terms of software development? If that's what you meant, then you are already violating the GPL and have no exception. Or if by "using" you just meant communicating over a network socket on a well defined interface (like ODBC), then you haven't created a derivative work, the GPL is irrelevant, and it's still not an exception.

The question for the courts is irrelevant to the GPL- it applies to any kind of copyright case. The question is: "Is my new work a derivative of the previous one?"

Obviously, if you copied parts of the old work into the new one (such as by linking together executable code), the new work is derivative, and you need permission from the previous copyright holder.

And just as obviously, if your work doesn't include the other one, but merely depends on the user having it installed, it is not a derivative product. So the GPL (or other copyright claims) mean nothing.

Re:Who owns the code?

[SerpentMage]

English is not my best language? Next time leave the snide remarks aside!

The problem here is that what you consider as obvious is not obvious in a court of law. You consider that sockets, ports, etc as obivously not violating the GPL.

I got news for you bub! The court of law has not determined what derived is and not is. Why? Because the question to be determined what is defined to be a derivative piece of work and not.

That is the question that needs to be answered. And in the German Legal paper it raises this as a not to be underestimated issue.

Think about this in legal terms and NOT technical terms. In legal terms you have just said to me that connecting MySQL via ODBC is not a violation of the GPL. However I have created a dependency between two applications. Neither can live without the other. Ok you say it is because it is a neutral interface, which means the MySQL database could be replaced with any other database.

Ok that issue has been clarified. Now lets try another example. There is a neutral library that is integrated into the application. Oh now there is a GPL violation. Why because it has been integrated by linking. But what is linking in legal terms? It is the creation of a dependency between two different applications. The techie says, it is two different types of linking. Legally though how can a difference be made? Because in the ODBC example there is a linking as well?

We can talk about this till the cows come home.

The problems are not my communication skills, but the fact that you are seeing things as a techie and not as a lawyer. And this is what I am trying to highlight.

And what I am trying to highlight is that even though you think you are right, it might not be applicable in another court of law.

Re:Who owns the code?

[Teancum]

So you are concurring with me that the GPL simply doesn't even cover this software interface issue. If you are using MySQL as a database engine (through an ODBC interface), this is indeed a murky issue.

On the positive side, I don't think that in this case the MySQL programmers mind you using it as the back-end data base engine for a propritary license software project (which is the only case which really matters anyway). Indeed, they actually encourage it, but I would strongly recommend (as I suggested in my previous post) that you get something written from the MySQL developers before actually deploying a propritary project (or better yet, before even starting). This may even be covered on their FAQ page. I'm not going to bother looking this up, but the principle holds for all other GPL'd projects.

This has nothing over what the GPL states, but it a legitimate reason to make a new version of the GPL (which has been talked about by various members of the Free Software Society). Because of the widespread use of the GPL now, making a change to this license is going to be a big deal. There is a versioning clause that allows you to upgrade to later versions of the license, so if this is spelled out by RMS & Co. then it will become clarified in a better way.

Re:You don't need to agree to the GPL when install

[inc_x]

This is exactly the point when it comes to liability. Because a user doesn't have to agree to the GPL when he installs it, it means that as long as he doesn't redistribute he can be using the software without having agreed to the GPL and is therefor not bound by it. As a result the liability clause of the GPL is not in effect for that user either.

Other than that the article argues that even if the clause would be in effect it may be an unlawful restriction of the users rights and therefor not valid anyway. Whether such restriction is allowed or not depends on the section of the law that is applicable and the article considers several possibilities.

Put in perspective, it is probably simply not possible under German law to lower liability beyond a certain point and no license, GPL or EULA, is going to change that.

Whatever you do do not hop the strass

[Anonymous Coward]

Whatever you do do not hop the strasse or you will pay until your butt bleads.

Give in to the dark side and you won't have prblms

[Anonymous Coward]

Give in to the dark side and you won't have problems like this.

Legally Binding

[SolidGold]

I am not convinced it the GPL is legally binding anywhere. Even if it is, it is mostly irrelevant. Most breaches of the GPL are impossible to detect, and those that are detected are resolved not primarily because of legal issues, but because of public relations.

Re:You don't need to agree to the GPL when install

[egghat]

No, IANAL (thank God).

But IAG (I am German). So excuses, when my assumptions that the US laws are different from the German laws are wrong. The things you describe are quite similiar to German laws (you own the copyright and you are liable for the things you produce and you can't claim otherwise (or at least, it's not very simple).

The article by the ISV just asks the same questions many people in the US ask regarding the GPL. I hope, that the GPL stands these questions, but it hasn't been tested in court, not in the US and not in Germany. IIRC the FSF Europe is working on some of these problems. This law stuff isn't simple. Especially when you try to create licences that work worldwide.

Btw., it's always a good idea to support your local FSF.

Bye egghat.

Re:You don't need to agree to the GPL when install

[Peter La Casse]

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?

If you have suffered a loss due to their negligence, sue them, or whoever else you think is responsible. The GPL has little bearing on it. Open source software is no more vulnerable in this regard than closed source software, except that the stereotypical open source software developer doesn't have deep pockets.

Why is this new or unexpected? If you are criminally negligent, don't expect your pure motives to get you off the hook.

The post you are responding to, however, isn't talking about this aspect of software development, it's responding to a specific point about when the GPL applies.

Re:You don't need to agree to the GPL when install

[wilddur]

Imagine:

My computer crash and I lose a 1000 pages work and I get fired. All becouse a well known Windows bug.

Or...

I use M$ in a nuclear power plant (without ava... you know why).Imagine there is a little bug that causes something relly big compared with Chernobill

What is M$ going to do to?

is EULA ilegal?

Of course if you SELL a program assuming false features, then there is an ileal matter. But no abou the redistribution license

Don't you think this is a problem, then?

[xant]

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:Don't you think this is a problem, then?

[Malcontent]

It's not they are illegal it's that the authors of the software may be able to sue the installers. Since this will never happen in reality the installers can sleep in peace.

Re:Don't you think this is a problem, then?

[egghat]

First: The GPL doesn't apply for users, only for distributors.

Second: When the GPL doesn't apply, all normal laws apply. And this could mean, that the programmers are liable for their software. And may be sued. And that may be a problem. Not for the user alone, but for the programmer as well.

(I doubt this, but the points in the paper may be valid).

Bye egghat.

Re:Don't you think this is a problem, then?

[Alsee]

The GPL doesn't apply for users, only for distributors.

Right, but it DOES apply to destributors. And if someone distributes code illegally then wouldn't they be the ones liable? It would be pretty evil to hold me liable if someone else gives you my code illegally. You don't have permission to have my code.

-

Re:Don't you think this is a problem, then?

[Phroggy]

The GPL doesn't apply for users, only for distributors.

When I loan someone my Slackware CD, as is apt to happen at an install party, have I not just become a distributor? I have obtained the software legally, but copyright law prevents me from giving someone else a copy of it, which is why I could not legally loan someone a Windows XP CD to install on their system (if I had one, which I don't). However, the GPL grants me a license to give them a copy of Slackware. If the GPL is invalid, then I no longer have that legal right, and cannot loan them my CD, thus putting a damper on the festivities.

Never mind the excessive geekiness of having install parties to begin with. ;-)

Re:Don't you think this is a problem, then?

[Anonymous Coward]

Yeah, it'll never happen.

And the US government would never hold people without trial, and a well-known company would never make ridiculous claims of ownership over every operating system in existence.

need more summary!

[grue23]

Wow, this article is the great equalizer. Now I can't get annoyed with people for not reading the links because virtually nobody on /. would understand the links even if they tried to read them!

I'm still not worried.

[OwnerOfWhinyCat]

One hundred thousand lines of code will take 100 programmers two weeks.

And we have them.

Unless SCO produces a contract signed by Linus in 1990 granting them rights to all future derivatives, they won't even put a dent in Linux.

Wrong.

[Qbertino]

GPL may not be *fully* enforce*able* in germany. The Heise artikle goes on about Service contractors being liable for damages when installing GPL software without reasonable cause and that developers, if paid writing GPL software, still can be liable for damages caused by said software due to overlapping contracts.

Bottom Line:
The article says that, no other than in the US, RL situations like where the GPL fully protects contractors from liability are rare at most.
Nothing new here, move on.

Why can't users accept some responsibility?

[scottme]

Why on Earth has humanity (or at least, western civilization) reached this point where every misfortune that occurs has to be someone else's fault? Surely sometimes, maybe even often, it's no-one's fault in particular. Or it's your own damn fault. After all, shit happens.

And how come in Germany, as it seems, even if you disclaim liability to the extent that most software suppliers do, you are still to blame, even if you supply the software (as most Open Source suppliers do), essentially or entirely at no cost?

Good grief.

Caveat Emptor

[tjstork]

Let the buyer beware?

If it worked for Hammurabi, it worked for us.

Besides, under Open Source, you have the widest possible chance of peer review. Liability is not an issue because you have a chance to study it before you use it in ways that closed systems do not let you do. There is also a freedom of speech about it. A Chrysler Engineer might not be able to tell you that they screwed up something with an engine, but a Linux Engineer can tell you everything.

At the end of the day, Open Source is better than Closed Source + Liability because under Open Source you prevent Liability from ever happening.

Re:So what if GPL is invalid? - No big deal

[Znork]

"I am not speaking sarcastically, I honestly believe that, even in US, GPL is not exactly enforceable."

Are you seriously suggesting that copyright law is not enforcable? I think you'd get some input on that from everyone from the Buisness Software Alliance, ranging through your local police station to the DA to the US Supreme Court.

If they dont follow the terms of the GPL they are engaging in criminal copyright violation, as the GPL is the only thing granting them permission to distribute the code, if, and only if, they follow the terms of the GPL.

That means the right to take code and distribute it is enforcable by police and criminal courts, with attached fines of thousands of dollars per copy plus jail time on top of that.

MS, IBM and Oracle may have the power to resist a small civil lawsuit indefinitely, but not even they have the power to withstand a clearcut case of copyright violation, any more than any other huge corporation could get away with running Windows without paying.

It's just not a case of civil lawsuits, it's a case of criminal law, and the government has a notoriously large budget to pay for the prosecution of criminals even if the wronged party may not have it.

So breaking the GPL is going to put you in exactly the same kind of trouble as not filing tax properly or making five million copies of Windows XP and selling it.

About those three points...

[Kjella]

The first one is quite valid, as while there is a copyright holder on each piece of code, there is no single copyright holder. Assume that there is a legal liability (Getting back to that in the next point), but it exists because two pieces of code, written by two different people, together create this liability. Think something like the Mars probe foot-to-meter fiasco, both code blocks operate well individually but not together. Who do you sue? In what country? For what exactly?

The second point about employers and code is completely wrong and illogical as the GPL does not control money at all, only that any recipient of the binary must also be given the code under the GPL. Whatever code an employee writes himself, he can assign copyright to whoever he likes (or pays for it).

The fact that the GPL is in English I don't see the problem with. If there is some rule that German contracts must be in German, create a straw company in the US that both companies have a business contract with, I assume international contracts can be in English.

The derivative works is pretty well defined by the FSF, the problem is how a court might interpret the definition of derivative work. That one is a real weakness with the lack of legal testing of the GPL.

As for warranty and liability, they might be right. But at least I would argue that while a program is a product that can be defective, the source code is merely pieces that are not defective beucause they separately and uncompiled have no purpose.

As an allegory, from what I understand it would be illegal under German law to give away a bicycle with defective breaks, if you were grossly negligent about it. But each part, the wheel, the steering rod, the light, the frame, even the wires and clamps and whatnot that could have produced a working bike (or some other contraption) are not at fault for improper assembly.

As for the last point about liability of vendors, I don't really understand it. The distributions make it quite clear that they are selling a distribution, not their own code. If that one held true Tucows would also be held liable for whatever defects are in programs they host, which they do not. So this appears to be a sleeping branch of the German law.

Kjella

Misleading summary

[tlk nnr]

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.

New Product

[t0ny]

MSFT Germany announces a new product- Microsoft Linux!

I found you funny

[arcadum]

But, the +1 interesting works too.

Re:I found you funny

[Anonymous Coward]

The very first rating he got was "-1 overrated."

Moderators on crack...

Re:You don't need to agree to the GPL when install

[egghat]

That nobody has (successfully) sued MS for their bad software doesn't mean that no software company whatsoever hasn't been sued for bad software products.

And the second point in my post is, when you don't have to agree to a licence (as you have to with most OSS), what licence does apply (the GPL only applies to distributors, not the users)? No licence at all? And then: Who is liable? And for what?

These questions are not answered so far. And that are some of the questions the ISV article asks.

Bye egghat.

Stupid people PISS ME OFF

[arcadum]

I concur.

Re:You don't need to agree to the GPL when install

[Rutulian]

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?

That doesn't sound, to me, to be much different than the situation in the US. And it is something PHBs always claim to be worried about. Who can I hold responsible if the software deletes my database? The solution has been the creation of companies like RedHat that provide support and guarantee the reliability of the software they distribute (even if they don't write it themselves).

I think most people will agree you can't hold someone (like Linus) responsible for software they develop as a hobby and distribute for free because they want to. If you decide to download it and use it without some kind of support contract than you are on your own if something goes wrong (though I would like to think most developers would respond to problems/bugs provided you weren't a jerk about it). So how is it any different in Germany?

No comment on the copylefting stuff. IANAL

obligatory Simpsons quote

[Anonymous Coward]

"No one who speaks German could be an evil man."

Interesting question

[pclminion]

Regardless of whether German law, or US law, or any other law, the liability concern raises an interesting point. The GPL states in part (5): You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

That seems to be saying that it's still okay to use the software even if I don't accept the license. But if I don't accept the license, then there's no disclaimer of liability, right? So in theory could I sue a GPL author for damages as long as I haven't modified and/or distributed the program?

Re:Interesting question

[spitzak]

Yes that is correct. You can use the software without "accepting" the GPL. Therefore all liability is just like public domain software.

Notice that *all* his arguments apply to public domain software and commercial software. EULA's are invalid in Germany. For that reason I call this article FUD, they mention "GPL" all the time as though these problems are specific to it.

This is like saying "Volkswagens are very bad cars. They operate at "highway" speeds which are so fast that in a collision it is very likely the occupants will be badly injured or killed."

GPL allows others to provide warrantees

[fizbin]

The GPL specifically allows distributors (i.e., people who have accepted the GPL) to provide their own warranties or guarantees with GPL'ed software that they sell or distribute. It's one of those business models that RMS imagined would be profitable that never was (yet).

Note that this guarantee does not transfer if the person you sell GPLed software to resells/redistributes it. You get to decide your own terms for your waranties.

SUSE could easily provide a waranty for SUSE Linux that satisfied the minimum necessary requirements under German law, assuming that German law is even satisfiable. (some of the comments here make me believe that it may well be impossible to completely satisfy German law when distributing software)

hmp, didn't realize..

[Anonymous Coward]

all those pale fat bearded geek male programmers who wrote 99.999999% of the software out there had a sex change. I suppose we should start calling RMS Suzy?

nothing to be exited about

[boltik]

last week some guy on /. wrote the same thing about EULA in germany .

Responsibility and Freedom

[Anonymous Coward]

Every producer of every product on Earth has some kind of liability

The GPL was written by programmers, for programmers. By redistributing the GPL'ed code, and accepting the license, you are accepting the responsibiliity of being the 'producer'. You can do that because the license guarantees you can see the source code, and audit it to be sure you're willing to accept the responsibility, and modify it if you aren't happy 'signing your name' to the code.

Unix itself wasn't designed so much an operating system as it was a tool for making other tools; the GNU project followsd that original spirit. We don't hold Sears responsible for making the Craftsman tool that your mechanic used to fix your brakes. If the brakes fail, you(r survivors) go to the mechanic that used the tool - it's his responsibility to know that the tool failed and use a different one.

And, as the GPL says, if you can't legally distribute under the GPL (including the waiver of liability) then you can't distribute at all so if Germans are forbidden by law from being responsible for their own computers, then they have some issues to work out with their legislatures.

The GPL gives you freedom, and responsibility is simply the other side of the same coin. Despite the best attempts of various parties to separate them, it can't be done. If you don't want the responsibility of GPL code, then you shouldn't exercise the freedom it offers you.

Posting as AC from work, but you know who I am...
SVM, ERGO MONSTRO

GPL, or not, there's always some "liabilty".

[Anonymous Coward]

Take for example, a destructive virus. GPL'ing it simply would not free the author from being liable to their victims. "Use at your own risk", or not. I believe this is true most anywhere in the world.

The German problem, as was also seen in the US, is how do you assert the claim? And, the claim you have depends on location.

DeCSS was another example. A stupid US law (DMCA) bans trafficing in it. Yet, the "criminal" behind it all wasn't in the US. What could you do if you were, say, Red Hat, and got called to the carpet because DeCSS was illegally hidden inside some otherwise, seemingly, innocent package? Could you sue the people that bundled the "illegal" software into the GPLed product? Yes, you could, and again, the GPL could not protect the author.

In most places, the free nature of GPLed code would free the author from most problems related to "errors and ommisions". Say you load Linux on a non-supported IDE card and it screws your data -- you're probably on your own. That's why liablity for "free" things is usually hidden behind terms like "gross negligence" and "malice".

But, and here's the hard part, only a court could say for sure if your dead IDE disk was an act of malace or "gross negligence". The case would likely fail, but who do you haul to court to find out? What can you sue for, and where does it have to be done?

For the likes of Linux, and other well intentioned GPLed software, this is FUD based on a theoretical legal stipulation. It's always true... "You COULD do ANYTHING, and ONLY the COURTS can make the final determination." Given that, um, obvious truth, you can always continue the dubious argument to the next questions... who, where, and how.

Anyway, The open source development processes include enough due testing and review to run afoul of such things. But, there are always those ethically challenged few that will try exploit a situation. Legal systems around the world are blunt instruments, all it takes is a few bucks to file a complaint and turn everybody's lives upside down.

So THAT is what GPL stands for...

[lexbaby]

...German Pseudo License.

Re:You don't need to agree to the GPL when install

[MrResistor]

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 copyleft actually works. If I, as an American, release software under the GPL, I still own the copyright (and so do my descedents for 75 years after my death), I've just chosen to give up the exclusive rights copyright normally gives me. GPL is not public domain. GPL still protects the producer, just in a different way than copyright usually does. There is no difference in this respect between American and German copyright law, if what you wrote is accurate.

Cause you are liable for your products. The licence doesn't matter.

Which is exactly why the very first sentence in the GPL's NO WARRANTY clause contains the phrase "TO THE EXTENT PERMITTED BY APPLICABLE LAW." Considering this, where exactly is the conflict with German law? As far as I can tell this article is nothing but FUD. Then again, IANAGL, nor can I read German. If I've missed some crucial point please fill me in.

Sue Happy

[glenrm]

So the main problem with open source software is it is hard to figure out who to have a law suit against? Sounds like a problem for lawyers not open source.

The studio *might* be a M�-FUD, *might*

[Wolfgang]

There is one thing which makes me wonder. The 'Geschäftsführer' (~CEO/CTO) of the VSI, those who initated the stuy, is from Microsoft.

see here (in German)

So, there might be some FUD in that study.

Nevertheless, the GPL is not as proof as it seems to be in the U.S. As one already said here, the 'Urheberrecht' cannot be given away. One can give away the right to use, to modify, to sell, but not that basic right 'Urheberrecht'.

Another thing is the so called 'Salvatorische Klausel' which is basically nothing more than a sentence which says 'When a part of this license is not valid due to laws, the other part is not affected. Now, without such a sentence in Germany the *whole* license may be void.

But I am sure RMS knows that all ...

Please, find us a sucker!

[Xtifr]

I personally think that the GPL should be proven in court.

Prof. Eben Moglen (FSF Counsel) agrees, and has been searching for someone stupid enough to take the other side for years. If you know someone that stupid, please contact the FSF immediately. (Note, it'll have to be a real case, as a fake "setup" to test the GPL will probably just be thrown out of court.)

In the mean time, I think the rest of us can take comfort from the fact that nobody has been willing to challenge the GPL; not even those who were strongly motivated.

GPL vs Proprietary Licence

[karearea]

If the GPL is not enforceable then how does that affect Proprietary licences?
If someone could be sued, or claim damages against a writer of a piece of GPL'd software, does that wipe the whole concept of proprietary software licences stinging you for a lot of money and then saying tough luck if it doesn't work as planned or if it loses data etc?

GPL is solid

[Anonymous Coward]

The GPL is solid as a rock. The very fact that it has not even been challenged is proof of that. If it were not as solid as it is, it would have bit the dust long ago. MS would have seen to it for sure.

Re:GPL is solid

[Anonymous Coward]

The GPL is solid as a rock. The very fact that it has not even been challenged is proof of that.

LMAO!

Re:So what if GPL is invalid? - No big deal

[bnenning]

However, if you decide not to accept the GPL, the position on your rights to the software "falls back" to the default position, which is that you can't do anything with the software without breaching the copyright.

Not entirely correct; you can still run it. See 17 USC 117 it is not a copyright violation to simply use software you have legally acquired. (This also means that most commercial EULAs are lying when they say you must agree to their terms in order to use the software).

If Monty Burns released code under the GPL....

[grolschie]

Gratuitous Simpson's quote:
"Ooooh the Germans are mad at me, I'm so scared. Oooooh, the Germans! Uh oh, the Germans are coming to get me! Oh no, don't let the Germans come after me. Oh, no the Germans are coming after me. No! They're so big and strong. Oh, protect me from the Germans, the Germans! "

A-HA!

[euxneks]

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

A ha! Try claiming that Slashdot is too american centric now!

Copyright and Author's Rights in FOSS? debian-lega

[yositune]

It's interesting and important to note that RMS naturally had a copyright centric view when he started thinking about how to construct a licensing scheme addressing his concerns about software licenses.

It's not surprising then that there has been less discussion about how continental Author's Rights regimes fit with free software and open source licenses than under the US/British copyright regime.

There's been an interesting discussion on debian-legal over the last few months on "moral rights" issues. I would agree that this paper may demonstrate a bias, but also that we need to continue to think constructively about the issues posed.

Could a German speaker with access to legal dictionaries please translate the paper for review? Thanks.

If you're interested in the recent debian-legal discussions check the archives on the "droit d'auteur" or moral rights discussions.

http://lists.debian.org/debian-legal/2003/debian -l egal-200305/

If you're doing serious review please feel free to contact me there. I'd be glad to provide some general summaries and some pointers to literature.

Re:You don't need to agree to the GPL when install

[egghat]

One point you should never forget is that the licence is not valid if not prompted. Not the GPL nor the EULA. So the content of the licences doesn't matter.

And nobody talks about a "conflict" with German laws; most of the points the article makes are merely uncertaincies.

Liability: Do you really think that anyone packaging OSS in the spare time would do this, if he was liable (for his hobby)?!? I'm sure that most developers would quit soon when they were sued.

Regrading Copylefting: You're right: I indeed understood copylefting differently.

And one last thing: As someone else pointed out, most of the things I write are only valid regarding consumers (e.g. the prompting thing). The laws don't protect businesses as well as consumers. So the GPL may be valid for businesses even if not prompted, but it almost definitly isn't for consumers.

Bye egghat.

Re:You don't need to agree to the GPL when install

[Ed Avis]

One point you should never forget is that the licence is not valid if not prompted. Not the GPL nor the EULA.

A contract is not valid if you don't agree to it, that is for certain. And the GPL itself says:

5. You are not required to accept this License, since you have not signed it.

So, don't agree with the GPL? No problem! You are not forced to accept it in order to use a GNU/Linux system or any other GPLed software.

But bear in mind that most countries have copyright laws, and you will be infringing copyright if you distribute copies of the program. You can't do that without the permission of the copyright holder, which means getting a licence. The GNU GPL might be one licence under which the copyright holder is willing to grant permission.

Re:You don't need to agree to the GPL when install

[MrResistor]

Liability: Do you really think that anyone packaging OSS in the spare time would do this, if he was liable (for his hobby)?!? I'm sure that most developers would quit soon when they were sued.

I personally don't believe[1] exclusion of liability clauses are valid, but I would still release stuff under GPL if I had written anything worth releasing. Honestly, how much is the providor of a free product going to be liable for? As I understand it, German law would require me to either fix the problem or refund their money. So, if I can't fix the problem I refund them the nothing they paid me for it. Frankly, I don't see a problem here.

[1] Even if you (or I) live in a jurisdiction where exclusion of liability clauses are valid for situations where the product is used properly, I don't think that will be the case for long. IT is a huge part of our economy, and software failures can have a huge impact on a business. Eventually the courts will recognize this and act accordingly, so depending on such a clause for protection is foolish, IMHO.

Heise News?

[Hognoxious]

Man hat zwei "S"s verloren, denk'ich.

The Return of UCITA?

[Hognoxious]

Open Source is NOT the main problem, the main problem *may* be the lack of liability.

The whole question of liability makes me think that UCITA is rearing its ugly head again. Anyone who writes shareware or free software should be very wary of this.

Number System

[Anonymous Coward]

Ve German lawyers, count in octal: 64 == 0100
(0xffffffff flamebait!)

You are wrong

[Anonymous Coward]

The "Urheberrecht" has nothing to do with the "Verwertungsrecht", the Right to Use, Distribute, Sell...

You may e.g. as a book author sell the Verwertungsrechte exclusively and completely and you are no longer allowed to sell your work to a second Verwerter ("user, distributer").

But your Urheberrecht still grants that the Verwerter, e.g. the publishing company, must not change your work, e.g. make another person the murderer in your book.

Regards,
Jum