Europe Discusses Free Software Licenses

axelm writes "Two studies on legal issues concerning free software matters were published last week: One is written by German law professor G. Spindler from Göttingen, http://www.vsi.de/inhalte/aktuell/studie_final.pdf . The other has been published in the most precious french law review, Dalloz 2003, p. 1556. Both discuss mainly critical aspects of European copyright and contract law. The German Institute for Legal Research on Free and Open Source Software (http://www.ifross.de) answers some of the arosen questions and concludes that legal security for Open Source is still given in German and Europe."

Comments

prestigious

[spaceling]

I think the poster meant "prestigious law review."

Re:prestigious

[JeanPaulBob]

And I'm pretty sure the questions weren't "arosen".

Re:prestigious

[henrygb]

Perhaps he meant fragile or expensive: the Dalloz site says it is closed for maintenance, though the subscription database is open to those who are prepared to pay.

Why is legal security only available in German?

[Troed]

I mean .. can't you translate it?

(yes, I know it should be "Germany" .. )

Wow

[Vanieter]

Hey, that helps ! Care for a little translating ?

Babelfish translation:

[Stephen Samuel]

Intensified discussion around right security of suitor software (04.07.2003)
Of: Dr. Axel butcher and Dr. Till hunter

The discussion around legal security in handling suitor software by two current statements were heated up. In the distance of fewer days one on behalf of the VSI provided study of the Goettinger of professor Gerald Spindler and an essay Paris professor Christophe of the Caron appeared in the most important French technical periodical for lawyer (Dalloz 2003, number 23, P. 1556). In the center thereby the study Spindlers published under large press echo is located.

The press release of the VSI under the heading "study occupies juridical insecurities" shortens the appraisal thereby on the Linux critical statements. This surprises few, considers one that the VSI essentially represents the interests of the "prop. guessing eras" software industry. In contrast to it the appraisal is substantially more differentiated, the Stigmatisierung of the author as an opponent suitor software is therefore hasty. The shown legal problems are predominantly already well-known. Spindler refuses itself only in specifics question to the solutions, which the past bibliography offers, predominantly carries it the concept however. Where it deviates, its solutions are open to attack. In specifics question misunderstandings and misinterpretations of the licenses are to be deplored. This is to be lit up in the following one by some selected examples to the GNU general Public License (GPL) more near. A complete analysis of the work Spindlers is still pending. To that extent the theses of Koglin and Schulz, at present in work, are as well as a new edition of hunter/butcher, open SOURCE software - legal basic conditions of the free software to be waiting.

To surprise it must first that the study seems to equate the terms Freeware and free software (P. 18). For this is to be noticed that as Freeware spread programs usually straight do not correspond to the definitions of the Free software Foundation and the open SOURCE initiative, in particular no working on right exists. The related conceptualness is therefore unfortunate and does not correspond not to the understanding vorherschenden among experts.

To welcome it is against the fact that the study assumes that anyhow in the principle that also with complex Entwicklungstrukturen of numerous authors, who also -, secondary and successively at a software write, an action to restrain interference of an author "for all" is possible, without the names of all co-authors must be called (P. 26). This result is for the question of the penetration of the licenses before court of hardly overrating importance, corresponds however to the past level of knowledge. Importantly and "Linux friendly" is also the estimate of the appraisal that an ignoring of the obligations from the GPL to an omission of the rights leads. The GPL says this in number 4; after German right is this correct-proves as a solvent condition in accordance with 158 Abs. 2 BGB to regard (P. 31).

On the other hand it is more than misleading, if in the appraisal in several places from a "obligation to the free passing on the open SOURCE software" is spoken. On the one hand at all no obligation exists to the passing on, on the contrary the GPL sets up obligations for the case that the licensee passes voluntarily the software on or itself obligated to the passing on. One by SE existing publication obligation does not exist straight. On the other hand 1 paragraph 2 may be quite required a payment for the passing on of the individual piece of duplication in accordance with number, only no royalties may be raised. For the difficult question of the demarcation, when a payment is to be regarded as royalty, unfortunately nothing is this in the appraisal, is left thus to further research.

Problematic and of central importance the remarks of the appraisal are for the question of the e

Re:Babelfish translation:

[Stephen Samuel]

My reading of the translation is that the original study confused Open Source licenses with the more common commercial shrink-wrap and post-purchase licenses.

It really seems to me that thee his effective conclusion is that things like Microsoft's licenses aren't binding because the consumer buys their software, takes it home, and then finds out that (s)he suddenly has this wierd license presented that binds him/her to not do all sorts of things that weren't apparent when the purchase contract was completed.

A GPL license, on the other hand, doesn't bind the normal consumer from doing anything that isn't already prohibited by law. As such the claim that the consumer was 'blind-sided' by the contract (my language here) doesn't apply.Where the GPL kicks in is only where someone tries to do stuff that Copyright law would normally prevent. As such one would have to conclude that (( unless the person is simply violating copyright law)) a person distributing GPL code must first understand enough of the contract to accept the grant of extra rights and thus also the grant of requirements that go with the extra rights.

He seems to feel that the acceptance of extra requirements for people redistributing GPL software could be framed as 'payment' for the extra rights that the GPL is allowing.

His caveat is that where you could run into trouble with the GPL is that it's written in English -- not German. Lack of a German language GPL might be a problem -- although at this point he seems to get into the question of pan-national rights that come with EU rules.... I think he concludes that there's definite wiggle room, even there, but seems to suggest that it might be a good idea to come up with versions of the GPL in languages other than English.

((actually, I think that The FSF already has translations, but it might be a good idea to at least point people to the multilingual GPL availaibility in current copyright notices.))

Re:Babelfish translation:

[axelm]

Thanks for translating our small article on ifross.de and sorry for my bad english. The fsf translations are not the part of the license. They are only informing of the content. This might not be sufficient after European Conusmer Law. What is needed is a multilateral legal concept of free software licenses.