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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."
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.
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).
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.
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.
A monkey is doing the real work for me.
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!
MMO Quests are like orgasms:
You may solo them, I prefer them in a group.
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.
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...
"You can't make a race horse of a pig"
"No," said Samuel, "but you can make very fast pig"
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.
This sig under construction. Please check back later.
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. %^)
Always keep a sapphire in your mind
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...)
Here's my link, now where's yours little troll?
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
Anything I post is strictly my own thoughts and doesn't necessarily have anything to do with the opinions of IBM.
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.
-- "As a human being I claim the right to be widely inconsistent", John Peel
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
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.
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.
There are no trails. There are no trees out here.