German Court Says GPL is Valid

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German Court Says GPL is Valid

Posted by michael on Friday July 23, 2004 @05:29AM from the im-namen-des-volkes dept.

Axel Metzger writes "The Munich District Court has ruled on May 19, 2004 that the main clauses of the GNU General Public License are valid under German copyright and contract law. This seems to be the first judgment worldwide proofing the validity of the most popular free software license. The ruling is a confirmation of the preliminary injunction of April 2, 2004. The new judgment gives on 20 pages the reasons for the ruling. It states explicitly that the terms of section 2, 3 and 4 of the GPL are valid under German copyright and contract law. Here is the German text of the judgment; an English translation will be available soon. The judgment comes at the right time to fight those (SCO and others) who challenge the legal validity of the GPL in Europe and elsewhere. The lawyer of the plaintiffs, Till Jaeger from Munich should be granted the Free Software Award."

40 of 327 comments (clear)

Before partying.. by Karamchand · 2004-07-23 05:31 · Score: 4, Informative

Please note that the German copyright law (Urheberrecht, as it is called) is quite different from the US copyright.
1. Re:Before partying.. by albalbo · 2004-07-23 05:32 · Score: 4, Informative
  
  They're a Berne Convention signatory; it's not that different.
  
  --
  "Elmo knows where you live!" - The Simpsons
2. Re:Before partying.. by oxygene2k2 · 2004-07-23 05:58 · Score: 5, Informative
  
  berne convention only defines a minimum set of requirements.
  
  in germany (as well as various other european countries) you can't give away all your rights on your work, in short "public domain" doesn't work, "signing over copyright" doesn't work.
  
  so there definitely are differences.
  
  (oh.. you _can_ put stuff into the PD, technically speaking: publish anonymously, leave no trace that it's been you.)
3. Re:Before partying.. by Anonymous Coward · 2004-07-23 06:23 · Score: 2, Informative
  
  The main difference between US copyright and most(?) of the rest of the world, is that the US pretty much glosses over 'moral rights'.
  
  Most of Europe has a distintion between moral rights and reproduction rights. Moral rights are basic rights that belong to the creator, such as the right to prevent modification of the work. In most countries, these rights cannot be transferred (although they can be waived) and terminate at the death of the author. US law mentions these rights, but pretty much just glosses over them.
  
  Reproduction rights involve the right to make copies (obviously). These can be transferred (bought and sold), and can continue for a period after the creator's death.
  
  This difference gives the creator the ability to profit from his/her work, but still prevent publishers, etc. from modifying it against their wishes.
4. Re:Before partying.. by gnuman99 · 2004-07-23 06:25 · Score: 3, Informative
  
  in short "public domain"
  Just so no one is confused, GPL has nothing to do with "public domain" or "signing over copyright". It is a license that a copyright holder puts on the work.
It's nice by 2names · 2004-07-23 05:33 · Score: 4, Interesting

but that won't help us in the United States. Unfortunately, our government doesn't take heed from European countries anymore. Sad. We won't take counsel in our closest allies.

--
"I'm just here to regulate funkiness."
1. Re:It's nice by surreal-maitland · 2004-07-23 05:39 · Score: 4, Funny
  
  sure we do. we take counsel in our allies who agree with us. because those are obviously our closest allies. because they agree with us and that means they must be right.
  anyway, can't folks in the judicial system can still use this as 'precedent' in a way?
  
  --
  -ninjaneer
2. Re:It's nice by eln · 2004-07-23 05:47 · Score: 4, Insightful
  
  It can't be used as formal precedent, but international law and court decisions can, and often are, cited as supporting arguments in a court's decision.
3. Re:It's nice by Pharmboy · 2004-07-23 05:48 · Score: 3, Insightful
  
  anyway, can't folks in the judicial system can still use this as 'precedent' in a way?
  
  IANAL, but technically, "yes and no". It can't be an actual precedent because a precedent is a prior ruling/interpretation on the SAME law, which isn't the case since it was a ruling on a German law. However, it can still be quoted by an attorney as previous ruling, to demonstrate that upholding the GPL is not so unusual and is "universal". The GPL isn't American or German, after all. The judge can do with that info as he pleases, consider or discard it. A smart judge would probably look at it and at least say "hmm".
  
  --
  Tequila: It's not just for breakfast anymore!
4. Re:It's nice by ninewands · 2004-07-23 07:20 · Score: 2, Insightful
  
  It is not a binding precedent, which means that US courts do not HAVE to follow it. I imagine that since it is a DISTRICT court (trial-level court, IIRC) other German courts are not even required to follow it. That being said, the legal reasoning the judge used in deciding the case CAN (and probably will be) be followed as "persuasive authority" in other courts.
  
  --
  utter rubbish
My translation: by Anonymous Coward · 2004-07-23 05:34 · Score: 5, Informative

Rough translation pasted from my Groklaw posting,
sorry for the messed up formating:

The open source project netfilter/iptables has won a huge success in the legal
battle against the router manufacturer Sitecom: With the decision of May 19,
2004 (Az. 21 O 6123/03) the Landgericht München [something like a district
court? R.] has confirmed the temporary injuction. Acording to this the
manufacturer Sitecom is prohibited to sell its WLAN routers until further
notice. Also the comparatively high amount of the dispute of Euro 100000 was
confirmed in the decision.

In the written opinion which was published on friday, it is clearly stated that
the judge considers the GPL valid for principal reasons. It says: "The
chamber shares the opionion that the conditions of the GPL can under no
circumstances be seen as an abandonment of copyrights and legal positions linked
to copyright." The sueing developer was legitimized to demand the rights
linked to the sourcecode

This makes it finally clear that the GPL model also works according to
German law", rejoiced Lawyer Till Jaeger, who represents the
netfilter/iptables project, in an interview with heise online. After this
"probably worldwide first decision on the validity and enforcability"
it was assured that the open source community defends itself. On the other hand
the Court has made it clear, that nobody has anything to fear if he plays by the
rules of the GPL

It is unknown if the router manufacturer plans furter legal steps. Jaeger's
client in the mean time found out that Sitecom offers one additional router
model (WL-111) with a firmware that infringes the GPL. A fine of 10000 Euro
because of infringement against the temporary injunction has already been
demanded, declared Jaeger /ralph -- that is all of the heise article!
Truly a reason to rejoice, for Jaeger and for us!
1. Re:My translation: by Profane+MuthaFucka · 2004-07-23 06:11 · Score: 2, Insightful
  
  I'm guessing that's because the translator wasn't a native English speaker, so the German was translated into plain English. Notice there's really no "legalese" in there, nor are there overabundant acronyms, nor is there any business "manager speak" such as "productize" or "leverage". I didn't notice any place where citizens are referred to as "consumers", nor did I notice any other indication that a marketing department had a hand in the translation. All of these things I consider to be a pox upon the language, so much that when we read something in plain English it seems like poetry.
  
  --
  Fascism trolls keeping me up every night. When I starts a preachin', he HITS ME WITH HIS REICH!
American Courts by wormeyman · 2004-07-23 05:34 · Score: 5, Funny

Considering that the Supreme Court ruled that the Texas sodomy law was invalid based on European court's rulings perhaps IBM can use this and that case as part of their defense.
Mr. McBride takes the stand... by ScottGant · 2004-07-23 05:35 · Score: 5, Funny

Prosecutor: Mr. McBride, isn't it true that you have a tattoo on your chest that says "DIE, GPL DIE"?

Darl McBride: No no! That's German for "The GPL, the".

Jury mumblings: Well, no one that speaks German can be evil! NOT GUILTY!

--

"Music is everybody's possession. It's only publishers who think that people own it." - John Lennon.
This is good news by jonbryce · 2004-07-23 05:36 · Score: 2, Interesting

But it is not a surprise to anyone with even basic knowledge of copyright law.

The GPL is probably one of the least controversial copyright licences out there, and I would say it is totally watertight.

The only places where there might be problems are in countries like Iran which don't recognise copyrights from countries like the US. - if there is no copyright, there is no need to agree to the terms of the GPL to be allowed to use the software.
brings up a question by Da_Slayer · 2004-07-23 05:37 · Score: 3, Insightful

In terms of the SCO lawsuits this is great. It will allow IBM and others to just point to this ruling as proof of support for the GPL.

This is also a victory for good old RMS who has stated for years that the GPL is legally valid and binding.

This brings up an interesting question in my mind. Lets hypothesize for a moment that SCO loses all it's lawsuits and the GPL is proven in a US court to be valid and legally binding. How will future lawsuits dealing with violations of the GPL handled?

Are violators of the GPL going to have to pay fines or be forced to open source the code they designed in conjunction with GPL'd code. Add to this the possible stances the FSF could take on this issue.

This definitly makes things more interesting in my opinion.

--
Push harder towards Open Media/Content
1. Re:brings up a question by eddy · 2004-07-23 05:44 · Score: 2, Informative
  
  Are violators of the GPL going to have to pay fines or be forced to open source the code they designed in conjunction with GPL'd code
  
  They are going to have to stop infringing, just like today. This means removing the infringing code from, or GPLing, the product. There's a choice.
  
  Of course, repeated willful infringment can and should definitely lead to fines.
  
  IANAL
  
  --
  Belief is the currency of delusion.
2. Re:brings up a question by spitzak · 2004-07-23 05:58 · Score: 4, Insightful
  
  "violators of the GPL" are actually copyright infringers and are subject to the same punishments as copyright infringers. In all copyright cases in history, the maximum punishment has been cease & desist making the illegal copies, and monetary damages.
  
  I have never heard of a copyright infringer being forced to lose rights to other IP of their own. I very much doubt anybody will ever be forced to open source code. This would be like saying the New York Times has to give away all copies of their paper from now on because one of their columns was plagarized. Such ideas are total nonsense, but are always brought up by the enemies of the GPL.
  
  One part of confusion is that the infringer may choose to obey the GPL in exchange for getting the lawsuit threat dropped and to be able to continue distributing their product. But they were not "forced" by the GPL to do this. In fact, legally, it does not in any way get them out of their liability for the previous copyright violations (otherwise you could violate the GPL for years and then release the source code at the end as a "get out of jail free" card).
Germany says yes... by MosesJones · 2004-07-23 05:38 · Score: 2, Interesting

Which means the US courts are almost certainly going to have to say "no". Could lead to an interesting case where in Europe Microsoft is a monopoly that has to change its trading rules, Linux is perfectly okay and SCO is a joke. Meanwhile in the US its Microsoft the good corporate citizen, Linux is illegal and SCO is Unix.

Start an orderly queue at the borders please gentlemen and start boarding those boats.

--
An Eye for an Eye will make the whole world blind - Gandhi
How important? by Knights+who+say+'INT · 2004-07-23 05:39 · Score: 3, Interesting

I'm not sure about german law, but I think it's not a common lnaw system like the british/american system. That is, the decisions of judges don't have much impact on future judicial decisions. There is no 'quoting the xxx vs xxx trial of 19xx' in most legal systems. Since brazilian law students read a lot of german philosophy of law, I would guess they're in the same tradition we are.
1. Re:How important? by lelitsch · 2004-07-23 06:45 · Score: 2, Informative
  
  Yes, Germany has a codified law system, so individual decisions of judges don't have the same impact on future decisions. That being said, though, most judges use decisions made by higher courts into account.
  
  This decisions was made by a fairly low level court, so it might be of interest to other judges, but doesn't really set a precendent.
  
  The basic way this works:
  
  -Decisions by the constitutional court are binding for all German judges
  -Decisions by the 7 federal courts are not binding due to article 97 of the German constituion that states that judges are only bound by law, not by precendent or any other means. But for all intents and purposes, they are setting precedent simply because any conflicting ruling would almost definitely struck down on appeal. These are not like Federal Circuit Courts in the US, though. With the exception of the BGH, they are specialized courts like the Federal Labor Court, the Patent Court, the Financial Court, and so on.
  -Decisions by the 20 Oberlandesgerichte (one per state) are usually followed by lower courts for pretty much the same reasons. The Oberlandesgerichte or OLG are very similar to fedral circuit courts in the US.
  -Decisions by any court lower than the OLGs and the state constitutional courts are maybe getting looked at by other judges, but don't have a huge influence on further decisions one way or the other.
True, however by Sycraft-fu · 2004-07-23 05:43 · Score: 4, Interesting

There is really no way for the GPL to be invalid under US copyright law, and any company to still be able to use the code. If the GPL is invalid, that means the companies lack a license to distribute the code, so it's copyright infringement, pure and simple.

That's really why it works so well. If I make a work, it is copyright to me. By default no one other than myself has any right to distribute it at all. To do so, you need a license. The GPL is that license, but has provisions. You don't have to accept it, that's fine, but then you don't have a license to distribute. In no way are your rights infringed on, or copyright cricumvented.

Same thing applies to overall vailidity. If it's not valid, as SCO would like, that's fine, but then they, and anyone else, distributing GPL code are infringing on copyright since they have no license to do so. So if it's ruled invalid, it's a loss for them, espically since I imagine many bitter OSS people would go after them for copyright infringement as retribution.

This ruling is just a formal legal statement on that fact. A court has formally analyzed the GPL and come to the quite obvious conclusion: It's a legit license that obeys both the letter and spirit of copyright law.

Supposing it does go to court, I bet the ruling is the same in the US.
1. Re:True, however by Anonymous Coward · 2004-07-23 05:57 · Score: 3, Interesting
  
  There is really no way for the GPL to be invalid under US copyright law
  
  This is true. However, how copyright law defines software "derived works" has never been clarified, so there might be some edge cases (such as with dynamic libraries) where the traditional FSF interpretation doesn't hold up. If there ever is a real legal question over the (L)GPL, it would likely involve the "viral" aspects of glibc or QT,
2. Re:True, however by oxygene2k2 · 2004-07-23 06:01 · Score: 2, Interesting
  
  what parties such as SCO seem to hope is that the judge responsible for that case decides that public domain is the best equivalent of the terms of the GPL, as they were envisioned by the users of the license, that is possible.
  
  in germany that can't work out as PD doesn't really exist here
3. Re:True, however by Profane+MuthaFucka · 2004-07-23 06:03 · Score: 2, Insightful
  
  As copyrights are made stronger, the GPL is also made stronger. The GPL is a beautiful and skillfull judo move.
  
  --
  Fascism trolls keeping me up every night. When I starts a preachin', he HITS ME WITH HIS REICH!
No, it can't by 2names · 2004-07-23 05:44 · Score: 2, Informative

be used as precedent in the legal system of the United States. Only rulings handed down from US courts can be used as precedent.
BTW, IANAL.

--
"I'm just here to regulate funkiness."
Took long enough! by eadz · 2004-07-23 05:47 · Score: 2, Interesting

The GPL v2 has been around for 13 years and this is the first time it's been proven valid, even though it's in such widespead use.

I guess it's a testament to the plain english and common sense language of the licence.
Some perspective... by gillbates · 2004-07-23 05:58 · Score: 4, Informative

Microsoft speaks against the GPL for this very reason - now the developers must reveal their source code, because it was based on GPL'ed code. But what they conveniently neglect to mention is that according to the EULA, a Windows developer cannot distribute, or even build, a derivative of Windows, under any terms . The license for GPL code covers only distribution of derivative products, whereas the MS EULA covers merely using the product. In fact, to even view the source code for an MS product requires that a developer agree to never develop a competing product!

Merely posting the source will allow these guys to continue to ship their product, but if they'd chosen the Microsoft development model, they'd owe royalties for every single product shipped!

Even though these guys might not like divulging their source code, they are still in a much better position than had they used Microsoft's code as a basis for their product.

--
The society for a thought-free internet welcomes you.
somewhat related question by bokmann · 2004-07-23 05:58 · Score: 3, Interesting

On a somewhat related question, how does SuSE, a German company, justify their '30 day evaluation' download under the terms of the GPL?

I downloaded it, right? Even if it is just a '30 day eval'. Shouldn't they give me the source code?

isn't this '30 day eval' against the premise of the PGL anyway, that I should be able to redistribute the software I use?
1. Re:somewhat related question by spitzak · 2004-07-23 06:06 · Score: 3, Informative
  
  Yes, you are entitled to the source code, and it is available from their site.
  
  You can also redistribute it. Make sure you remove all the copyrighted material such as the SuSE logos and the installation program and help files, however. And make sure you remove any and all non-GPL stuff that you don't have a right to redistribute, such as Acrobat or any other such included programs. And you better recompile everything from scratch so you are sure their is nothing in the binaries that you don't have rights to redistribute. There are probably a lot of other rules, too.
2. Re:somewhat related question by cubic6 · 2004-07-23 06:23 · Score: 3, Informative
  
  Completely wrong. I suggest you read the GPL. There's no clause even suggesting that you can't distribute non-GPL code on the same CD. In fact, a large amount of code that comes with nearly every single Linux distribution is non-GPL. Apache httpd, PHP, X11, Perl, Python, etc. Most of those are GPL-compatible, but they certainly aren't GPL. The only time that the GPL affects other code is if it's linked to the GPL code, such as a static library or module.
  
  --
  Karma: Contrapositive
you're right by spiritraveller · 2004-07-23 05:59 · Score: 2, Informative

Pretty much all of mainland Europe follows the civil law tradition. Generally, only those countries having roots in the British Empire follow the common law tradition. The state of Louisiana still carries some remaining vestiges of the civil law tradition, which it inherits via its history as a French territory.
Very common misconception by vlad_petric · 2004-07-23 06:02 · Score: 4, Interesting

IANAL, but: Pretty much every license has a "gray area". IMHO two such problems with GPL are: 1. What constitutes derived work off the source code 2. How much it is reasonable to charge for distribution of source code.
It's quite conceivable that one judge would rule "against" one of the provisions of GPL for a very specific case, without invalidating the whole license. For instance: what if NVidia gets sued for not publishing their drivers under the GPL, and the judge does not consider their kernel module to be derived off the kernel ? Does that mean the GPL is invalid/unenforceable and NVidia used the linux kernel without a license? Hardly.

--
The Raven
1. Re:Very common misconception by Anonymous Coward · 2004-07-23 06:26 · Score: 2, Interesting
  
  Yes, but you must agree that the GPL is one of the "least gray" licenses out there:
  
  1) no dependence on contract law, only federal copyright law
  
  2) clearly written intent and explanation (a confused judge can understand exactly what the GPL is about, if some part of it happens to be ambiguous).
  
  3) detailed terms
  
  Note that many open source (and many shareware) license are much more ambiguous than the GPL. Example: Consider the recent discussion on the PHP license.. it has GPL-like terms but states that "only PHP can change the terms of code under this license"... does that mean that PHP can come along and change the terms of *your modified PHP code* at any time? I think so. That's could be a "show stopper".
  
  The GPL is a great license.
2. Re:Very common misconception by Stephen+Samuel · 2004-07-23 07:03 · Score: 2, Informative
  
  1. What constitutes derived work off the source code
  This still doesn't get around the fact that, if what you're distributing classifies as 'derived work', then you're caught by the GPL.
  Note that the GPL can, in some cases, call on you to distribute the source code to something that -- standing by itself -- would not constitute derived code. An example might be embeded device manufacturers. Even though a Linux module, distributed on it's own, might not classify as a derivative work triggering the GPL, the entire OS, distributed as part of the device and including the seme modules could concievably classify as a derivative work, and thus require the release of the entire source (including the otherwise standalone module) to classify as GPL compliant.
  As fir wgat classifies as a reasonable charge for distributing the source code, It's not going to be a big deal until the difference between what you consider unreasonable and what I consider unreasonable is less than what it would cost me to file suit and get an injunction against you (even if I do it self-represented).
  If you're that far off of what most people would consider a reasonable price, chances are you're going to know.
  If I thought you were way too high, but still less expensive than hiring a lawyer, chances are that I'd just get some friends to pool together the cost of a single copy and then put it up on my website and advertise it. Bandwidth is usually a cheaper revenge than legal fees.
  
  --
  Free Software: Like love, it grows best when given away.
GPL Valid? by tonywestonuk · 2004-07-23 06:17 · Score: 2, Interesting

I'm not sure if this is a GPL is legally valid president, more like a copyright infringement case, where the defendants are claiming the GPL allows them to carry on infringing, where in reality, it does not.

Its a bit like a Credit Card company providing a licence to someone that grants them the permission take anything they like they find in a shop without paying, on the condition that they deposit monies equaling that value into an account at some point later. Now, when some thief ends up in court for common theft, after nicking a load of stock, The thief claiming the Credit card companies licencing agreements with him are invalid, and can't be held up in court!.....

The GPL will be proven in a case of law when:

Person A , receives some software under the GPL, makes amendments to suit their needs, releases these changes to the world, as required by the GPL.

Person B, who makes software that competes with Person A (but this software also happens to be GPL'ed), Finds that there's this really neat piece of code done by person A, That will do wonders for his 'competing' GPL'd software, and so copies this code, line by line, into his product.... This product then becomes the market leader, no one wants to know A's product anymore!

Person A, isn't to happy with person B, and so sues A for copyright infringement. person B, then will have to rely on the GPL, to get themselves off the hook. At this point, if A can claim the GPL is invalid, then A has a case, however, by winning that particular case, they then leave themselves open to as similar copyright case by person C, who's software they original ripped off in the first place.
Re:Take THAT, SCO! by oxygene2k2 · 2004-07-23 06:22 · Score: 2, Funny

if you mean hitler, he was austrian, just as the current californian governor..

oops :)
IANAL by cwis42 · 2004-07-23 06:24 · Score: 2, Funny

For all of you who are wanting to post into this topic, I give you some "IANAL" so you won't have to bother yourself:

IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL IANAL

Just copy and paste 'em wherever needed, you are encouraged to actively put one of them into each paragraph of your posts.

Thank you for your cooperation.
Absolutely not. by AzrealAO · 2004-07-23 06:41 · Score: 2, Informative

All it means is they are guilty of Copyright Violation, and would have to pay damages based on that (which, depending on how long it's been in there could be fairly significant).

Going forward they would have to either remove the offending code from their products, comply with the GPL, or risk facing another Copyright Infringement case.
Re:Summary by dr_hassel · 2004-07-23 11:35 · Score: 2, Funny

GPL ist nicht für gefingerpoken und mittengraben.

Gruß, Kai-)