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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."
German courts are playing both sides, now?
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?
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.
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.
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.
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
Secure messaging: http://quickmsg.vreeken.net/
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.
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.
A monkey is doing the real work for me.
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.
***Quis custodiet ipsos custodes***
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?
Reality is defined by the maddest person in the room
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:
7 /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.
From: http://www.businessweek.com/magazine/content/03_2
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.
You can defy gravity... for a short time
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.
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.
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...
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.
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.
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?
" 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.
If you keep throwing chairs, one day you'll break windows....
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?
Programming can be fun again. Film at 11.
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
"Don't write down to your readers, the only people less intelligent than you can't read" - Sign on Newspaper Office Wall
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.
Liberal (adj.): Free from bigotry; open to progress; tolerant of others.
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)
(from http://www.georgetown.edu/faculty/ballc/oe/pater_
For other examples of Old English text, google is your friend.