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

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

[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: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).