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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."
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.
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.
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.
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.
Stephan
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.
"Don't Follow Leaders." Bob Dylan
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.