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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 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?
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.
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.
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
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...
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.