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GPL May Not Work In German Legal System
Posted by
timothy
on Wed Jul 02, 2003 05:14 AM
from the well-the-german-law-forest-at-least dept.
from the well-the-german-law-forest-at-least dept.
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."
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No problem! (Score:5, Funny)
We'd not read it even when it's short, simple and in English, so how hard could it be.
Re:No problem! (Score:5, Interesting)
(from http://www.georgetown.edu/faculty/ballc/oe/pater_
For other examples of Old English text, google is your friend.
Parent
In other news (Score:5, Funny)
Re:In other news (Score:5, Informative)
Parent
Translation (Score:5, Informative)
The Organization of German Software Industries (VSI) considers its view reinforced that using Open-Source-Software leads to jurisdictional uncertainties. On behalf of VSI, Professor Gerald Spindler of the law faculty at the University of Goettingen examined "Jurisdictional Questions of Open Source Software". In more than 100 pages he examines the situation from different perspectives: Author's Rights (Urheberrecht), Usage Rights (Verwertungsrecht), and Liability Rights (??, Haftungsrecht).
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.
Although one could argue about one or the other detail of the study, it spells out many problems. The license that is probably most popular for free software, the GPL, is hardly considered to be fully enforceable in the German maze of laws. For VSI, the results are probably most welcome, in order to spread uncertainty among people interested in Open Source, who are currently watching the actions of SCO against IBM eagerly.
Re:Translation (Score:5, Interesting)
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Re:Translation (Score:5, Interesting)
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.
Parent
Re:Translation (Score:4, Insightful)
Every producer of every product on Earth has some kind of liability. That's not different when producing software. Even if the EULA or the GPL claim otherwise. This problem gets worse with a software that is created by a team of volunteers in 10 countries around the world. Who is liable? Under which laws of which country?
There are a lot of other minor problems in the article. E.g. that you don't need to confirm that you agree to the GPL while installing the software. (That's similiar to unacceptable "with opening this box you agree to the EULA" when the EULA is *in* the box). You simply can't agree to sth. you haven't seen.
Btw., the article doesn't mention, how to fix the license. You'll get what you pay for
Bye egghat.
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Re:Translation (Score:5, Insightful)
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.
Parent
Re:Translation (Score:5, Informative)
They conclude that under German law, the authors liability is most probably limited to intentional damage and gross negligence.
Also, they argue that clause 2 (allowing modifications) and clause 9 ("and any later version") may be problematic. The problem with clause 2 is that modifications of a program may (e.g.) tarnish the reputation of the author, and legally one cannot waive one's right to sue for that (at least in Germany). Also, apparently the author may claim that modifications violate the artistic integrity of her work. However, the analysis foresees problems mainly for works of art, rather than utility programs. Clause 9 is problematic because here the author waives rights for future usage modes that she cannot yet foresee. But licences can only apply to usage modes presently known.
The baseline of problems with the GPL seems to be that in Germany (and, I think, also in other european states), waiving or selling of basic personal rights is usually not possible.
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Re:Translation (Score:5, Insightful)
That is, if you cannot apply the GPL, you MUST NOT apply it. As soon as you are without the GPL, you have source code and binaries for something that you are now not allowed to distribute without getting permission from the author, except as allowed by your country's take on fair use.
The GPL is a voluntary license, and you never HAVE to apply it if you don't want to. The fact that, in some legal systems, it may not be possible to apply it in some or all situations, simply means that you have what you are given, and you may not use it in ways that you are not allowed to by law.
The GPL doesn't apply to you unless you want it to.
Parent
Don't you think this is a problem, then? (Score:4, Insightful)
What it means is that the GPL is really brittle. Anywhere that any clause of the GPL is invalid, GPL code cannot be distributed. In this specific case, it means that e.g. Linux install parties are illegal in Germany.
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Re:Translation (Score:5, Insightful)
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.
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Re:Translation (Score:3, Interesting)
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.
Re:Translation (Score:4, Insightful)
Developers may be held liable if software does not work as expected, even if they only participated marginally in the development
followed by:
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.
These cannot both be true i.e. it cannot be that OSS developers are liable and yet buyers cannot hold anyone liable.
I think the guy is just trying to point out as many possible legal holes as possible. This is what lawyers do. Put any contract in front of a lawyer and they'll find holes it in. If they couldn't they'd be out of a job.
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Re:Translation (Score:5, Interesting)
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.
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good babel quotes (Score:5, Funny)
"Employers could go on thin ice, if they pay coworkers for the letter of open SOURCE often commodity."
"Even if one can argue perhaps over or other detail the study, then she calls many problems nevertheless with the name."
Re:good babel quotes (Score:4, Funny)
Don't worry, the comments below the main text clarifies it a lot:
If thus a damage to a right property third developed , CAN the user cling, if he uses scrap iron and that does not wait. And the manufacturer CAN cling, because he that produced. And/or both beside in vein etc..
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finally (Score:4, Funny)
babelfish translation (Score:5, Funny)
Das machine is nicht fur gefingerpoken und mittengrabben. Ist easy
schnappen der springenwerk, blowenfusen und corkenpoppen mit
spitzensparken. Ist nicht fur gewerken by das dummkopfen. Das
rubbernecken sightseeren keepen hands in das pockets. Relaxen und vatch
das blinkenlights!!!
ehh.. I think babelfish has been on the crack pipe again
Translation of page 2 of the study (Score:5, Interesting)
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.
Re:Translation of page 2 of the study (Score:5, Insightful)
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.
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Re:Translation of page 2 of the study (Score:3, Interesting)
This study is so self-contradictory that I can hardly see any use beyond spreading FUD. For example, two major conclusions are:
Yes, a court might decide that someone who sells (as opposed to: gives away without compensa
Next study (Score:3, Interesting)
Otherwise this is merely FUD.
that doesn't make much sense (Score:5, Insightful)
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.
Re:that doesn't make much sense (Score:3, Interesting)
Re:that doesn't make much sense (Score:5, Informative)
If you buy and run product X be it linux/windows/aix/????? and it destoys youre data, sleeps with youre cat and sets fire to youre wife then though luck. Sure some special contracts exist wich rememdy this but these are little more then extremely expensive insurance policies such as you could buy from any insurance agency.
But the VSI can't really be blamed for this FUD. Suse is right there in germany stealing their contracts. Damn commies must be stopped or else what did they tear down the wall for!!!! :)
Really europe makes some extremely dence laws, netherlands introduced a .5 to 1 euro tax on dvd recordables, but opensource here is pretty hot. Well compared to the us goverment. Anything to stick it to the yanks!
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Re:that doesn't make much sense (Score:3)
It's not clear to me that there is that much of a difference. The US has the DMCA and COPA, plus police confiscations of computer equipment without a trial. German courts stopped SCO's slander with a restraining order. And European antitrust efforts seem a bit more on the ball. On the other ha
Hourra! (Score:5, Funny)
I AM a German lawyer and it is the FIRST article I have understood on Slashdot!
Re:Hourra! (Score:3, Funny)
I AM a German lawyer and it is the FIRST article I have understood on Slashdot!
you insensitive clod!
Please try to post properly, this is Slashdot, you know.
shold be a problem in brazil too... (Score:5, Interesting)
WARNING: THIS STUDY IS F.U.D. !!!! (Score:5, Interesting)
He's right, kinda (Score:5, Interesting)
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The responsibility for the product? (Score:5, Interesting)
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.
IANAL but I'm German (Score:4, Informative)
The only problem is that justice is not a matter of laws and "being right" anymore, actually (thanks to the lawyers) its more a matter of money. And sadly money is the resource that Microsoft has in big ammounts.
How is an open-source developer liable? (Score:3, Insightful)
I'm a little unsure of the details of this (~9 years since I last read any German, so I didn't even try).
But they talk about liability and GPL software *customers*. Since when are people who donwload a GPLed project customers? If you get linux from IBM, say, then you're an IBM customer and IBM shouldn't release products without checking and testing all the code they're selling. But going from that to holding contributing developers liable is ridiculous (even if it is German law).
"This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY"
Laws change in each country (Score:3, Funny)
The good side is that the MS'EULA may not be legal everywhere too.
And in many years, people from Jupiter, Aldebaran or Coruscant will claim that the GPL and the EULA from MS are both non-sense according to their legal system ("what's this 'intellectual property' crap??!!" will they ask). If they have one.
(The reverse may be true: the Generous Telepathic License from Pluto is probably not legal on Earth.)
interesting point: language (Score:5, Interesting)
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.
The study is not about the GPL at all (Score:5, Insightful)
Let us imagine for a second that this is actually a fault in the GPL. Now, what about public domain software (not GPL), such as software freely provided by computer manufacturers, or by individuals or groups. Exactly the same issues apply: writing such software can expose the programmer and company to liability, and using such software means you have to accept that no-one is liable.
Now how about commercial software. Is this any different? No, it can be criticised for exactly the same reasons.
So, it's clear that the so-called study is a misdirection. The GPL is about ownership and freedom, the study is about legal liabilities. No matter who owns the software, the legal liabilities remain shared between the author and the user, as defined by contracts and legislation.
That the study was paid for by a group representing commercial software vendors suggests that the deep pockets of interested parties lie behind it. Why Frankfurt, Germany? Because Germany is at the fore-front of the OSS revolution. (Note that my company has been distributing OSS products since 1997 and a steady 9-10% of all downloads have been from Germany, against 40-50% from the USA and 30-40% from the rest of the world).
The study is bunkum and can be dismissed easily, since taken to its logical conclusion, no-one should write software at all, and no company should use any product whatsoever if they are not able and willing to sue the person making it.
Summary starts on p. 104 (Score:5, Informative)
I don't have a lot of time, but here's my first impression. IANAL, etc., etc. The summary raises three categories of legal problems, involving (1) the copyright holder, (2) contract law, and (3) liability. Actually, it seems to me that everything boils down to the issue of liabiliy: who has to pay if the software is defective in some way. Identifying the copyright holder and clarifying the contract are all means to the end of deciding who has to pay up. Incidentally, the text occasionally mentions open source software in general, but it appears that the only license analyzed in detail is the GPL (at least in the summary).
The section about the copyright holder strikes me as a tremendous struggle with what should be an easy question. Prof. Spindler or whatever says that since so many people may have contributed to the development of GPL'd software, in so many different countries, there may be huge problems identifying the copyright holder. This is the longest and most complicated part of the summary, and I'm not into working it all through right now, especially since I don't see the problem. Isn't this a moot issue with the GPL, since there is always exactly one copyright holder, regardless of who else contributed? That is, if the distributor of GPL'd software elects to include someone else's contribution, they nevertheless distribute it under their own copyright?
There are other issues in this section: if a company pays employees to contribute to GPL'd software, they might not be able to let the company be the copyright holder, because they do it for money, and the GPL allegedly says you can only do this free of charge. (Is that right?) It also raises the problem that the GPL as a business contract (one business allows another to use software under the conditions of the GPL) may be problematic since it's only in English. And that it is difficult to know when the GPL applies to new development, since the criteria for determining whether one software is derivative of another are unclear.
The second part contains what I think is the most critical claim: That the exclusion of warranty and liability in GPL sections 11 and 12 is not valid under German law. Open source software is legally regarded as a gift, and even for gifts, German law requires certain minimal standards of consumer protection, for example against deliberate or gravely negligent defects.
And so in the third section, Prof. Spindler claims that there are liability issues related to open source software, for the aforementioned cases of deliberate or gravely negligent failures of the software. He specifically mentions that distributors may be liable for viruses distributed in the software. Also, third-party-users may have stronger liability claims if they suffer damages caused by GPL'd software. For example, if a provider uses GPL'd software that is used in turn by its customers, and the software has some kind of defect that harms the customers, then the provider itself may be limited with respect to liability claims against the software authors, but the customers might be able to make stronger claims against the provider. "Download centers" or software distributors (such as SuSE, I guess) may be liable for distributing defective open source software. And if a provider or distributor does not hire support or consultants to help them ensure that the software is not defective, they may be exposed to liability claims because they were insufficiently diligent.
As I said, this summary reflects a superficial read-through and I'd be surprised if I've really understood it all. Hope it helps, but don't sue me if my summary/translation is defective. %^)
Other problems with GPL vs. german law (Score:5, Interesting)
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?
Standard legal procedure (Score:4, Funny)
The opinion of one lawyer is worth precisely nothing, unless he's the judge and you haven't got enough money to escalate to a higher court.
Re:Actually, the GPL hasn't exactly worked.. (Score:5, Informative)
No, SCO is not challenging the GPL, SCO really has little to do with linux.. it is about two things, one, a contract dispute with IBM, two, ownership of derivatives (they claim that if you write code and license it to SCO for use in SysV, then SCO owns all rights to that code and you cannot take that same code and use it elsewhere).
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Re:Actually, the GPL hasn't exactly worked.. (Score:5, Interesting)
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
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Re:Actually, the GPL hasn't exactly worked.. (Score:3, Interesting)
From: http://www.businessweek.com/magazine/content/03_2 7
Re:Actually, the GPL hasn't exactly worked.. (Score:5, Interesting)
How exactly is the retail of the dodgy widget an excuse for the thief?
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Re:Actually, the GPL hasn't exactly worked.. (Score:5, Insightful)
But in this case it is not without SCO's knowledge...or atleast they had the opportunity to examine the source before distributing it.
By not doing it (and thus taking a risk) they forfitted the right to complain later. SCO's argument that nobody checks before shipping is nonsense. Just because everybody takes risks does not mean that they don't have to face the consequences of their actions.
Once the first 'widget' gets through the offending company might use your apparent approval as a sign for subsequent 'theft'.
In the case of IBM vs SCO not even the theft has been proven...
Jeroen
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Re:Actually, the GPL hasn't exactly worked.. (Score:5, Insightful)
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.
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Re:Slam SCO, now GPL? (Score:5, Insightful)
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.
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Re:Slam SCO, now GPL? (Score:5, Informative)
In the US it is very normal that two 'grown up' parties agree to something fair reaching; such as waiving certain rights or liabilties with respect of each other.
In most of (continental) europe that is not quite so easy; and the contract or agreemnt which two parties may have with each other may simply be overclassed by national law or 'common sense' in that respect.
The national law dictates that there are certain minimal levels and that disowning it all is simply not an option.
So regardless of what the developer (dis)claims with respect to warranty; the court may well held him liable to a certain extend.
At the same time, there is also a bright side; those liabilities are generally much more limited and 'capped' than in the US; and hardly ever exceed a small multiple of the resonable sum/economic value of the good (and not what can be done with that good). And they also put very reasonable demands on the 'user'. Willy nilly risking 5 million of lost production on a bit of untested free software is not going to ring true with the judge. He expects (more) resonable caution than generally in the US.
Also note that the scope of damages is very propotional to the purchace/gains of the developer/transaction. Sor 'free' (as in gratis') software those amounts are obviously not going to be very large.
Except if there is a bit more blame; i.e. someone knowingly dropping the ball. And unlike the US, where that waiver is going to help you - it may do little or nothing in most of Europe. Whereas in the US you are fairly secure.
On the other hand - any secondary damages issues are not nearly as much of a problem in europe, and virtually unheard of. Plus bear in mind that cost recovery and legal assistance is on an entirely different level in germany compared to the US. This making the issue of frivolous lawsuits by a megacorp which cripples a small developer virtually unheard of in most of the EU.
So in short; yes - you are bit more open to exposure in Europe - but as long as you behave resonably and are not vandalizing the hight of that exposure is very limited; and proportional to your fairly direct and clear cut gains from that software. And with open source / gratis - that is not going to make you go bust.
Dw
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