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GNU is Not Unix Government The Courts News

German Court Says GPL is Valid 327

Posted by michael
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."
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German Court Says GPL is Valid

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  • Before partying.. (Score:5, Informative)

    by Karamchand (607798) on Friday July 23, 2004 @01:31PM (#9781314)
    Please note that the German copyright law (Urheberrecht, as it is called) is quite different from the US copyright.
  • Re:Before partying.. (Score:5, Informative)

    by albalbo (33890) on Friday July 23, 2004 @01:32PM (#9781329) Homepage
    They're a Berne Convention signatory; it's not that different.
  • My translation: (Score:5, Informative)

    by Anonymous Coward on Friday July 23, 2004 @01:34PM (#9781346)
    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!
  • GNU GPL Conditions (Score:1, Informative)

    by Ignignot (782335) on Friday July 23, 2004 @01:37PM (#9781377) Journal
    Because some people might not know them by heart... from the gnu.org website:

    1. You may copy and distribute verbatim copies of the Program's
    source code as you receive it, in any medium, provided that you
    conspicuously and appropriately publish on each copy an appropriate
    copyright notice and disclaimer of warranty; keep intact all the
    notices that refer to this License and to the absence of any warranty;
    and give any other recipients of the Program a copy of this License
    along with the Program.

    You may charge a fee for the physical act of transferring a copy, and
    you may at your option offer warranty protection in exchange for a fee.

    2. You may modify your copy or copies of the Program or any portion
    of it, thus forming a work based on the Program, and copy and
    distribute such modifications or work under the terms of Section 1
    above, provided that you also meet all of these conditions:

    a) You must cause the modified files to carry prominent notices
    stating that you changed the files and the date of any change.

    b) You must cause any work that you distribute or publish, that in
    whole or in part contains or is derived from the Program or any
    part thereof, to be licensed as a whole at no charge to all third
    parties under the terms of this License.

    c) If the modified program normally reads commands interactively
    when run, you must cause it, when started running for such
    interactive use in the most ordinary way, to print or display an
    announcement including an appropriate copyright notice and a
    notice that there is no warranty (or else, saying that you provide
    a warranty) and that users may redistribute the program under
    these conditions, and telling the user how to view a copy of this
    License. (Exception: if the Program itself is interactive but
    does not normally print such an announcement, your work based on
    the Program is not required to print an announcement.)

    These requirements apply to the modified work as a whole. If
    identifiable sections of that work are not derived from the Program,
    and can be reasonably considered independent and separate works in
    themselves, then this License, and its terms, do not apply to those
    sections when you distribute them as separate works. But when you
    distribute the same sections as part of a whole which is a work based
    on the Program, the distribution of the whole must be on the terms of
    this License, whose permissions for other licensees extend to the
    entire whole, and thus to each and every part regardless of who wrote it.

    Thus, it is not the intent of this section to claim rights or contest
    your rights to work written entirely by you; rather, the intent is to
    exercise the right to control the distribution of derivative or
    collective works based on the Program.

    In addition, mere aggregation of another work not based on the Program
    with the Program (or with a work based on the Program) on a volume of
    a storage or distribution medium does not bring the other work under
    the scope of this License.

    3. You may copy and distribute the Program (or a work based on it,
    under Section 2) in object code or executable form under the terms of
    Sections 1 and 2 above provided that you also do one of the following:

    a) Accompany it with the complete corresponding machine-readable
    source code, which must be distributed under the terms of Sections
    1 and 2 above on a medium customarily used for software interchange; or,

    b) Accompany it with a written offer, valid for at least three
    years, to give any third party, for a charge no more than your
    cost of physically performing source distribution, a complete
    machine-readable copy of the corresponding source code, to be
    distributed under the terms of Sections 1 and 2 above on a medium
    customarily
  • No, it can't (Score:3, Informative)

    by 2names (531755) on Friday July 23, 2004 @01:44PM (#9781460)
    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.

  • by eddy (18759) on Friday July 23, 2004 @01:44PM (#9781465) Homepage Journal

    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

  • by Anonymous Coward on Friday July 23, 2004 @01:57PM (#9781609)
    the mods must be drunk for rating this one funny
  • Some perspective... (Score:5, Informative)

    by gillbates (106458) on Friday July 23, 2004 @01:58PM (#9781618) Homepage Journal

    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.

  • Re:Before partying.. (Score:5, Informative)

    by oxygene2k2 (615758) on Friday July 23, 2004 @01:58PM (#9781627)
    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.)
  • you're right (Score:3, Informative)

    by spiritraveller (641174) on Friday July 23, 2004 @01:59PM (#9781644)
    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.
  • by Anonymous Coward on Friday July 23, 2004 @02:00PM (#9781647)

    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.

    You've got to stop framing it around the GPL to understand. If somebody is "violating the GPL", it means that they are guilty of copyright infringement, pure and simple. They may make their code open-source as part of a settlement, but it would be extremely unlikely for a judge to rule that they must freely license their code or give up their copyrights.

  • by spitzak (4019) on Friday July 23, 2004 @02:06PM (#9781711) Homepage
    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.
  • by cubic6 (650758) <tom@NOSpaM.losthalo.org> on Friday July 23, 2004 @02:23PM (#9781896) Homepage
    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.
  • Re:Before partying.. (Score:2, Informative)

    by Anonymous Coward on Friday July 23, 2004 @02:23PM (#9781899)
    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.
  • Re:Before partying.. (Score:4, Informative)

    by gnuman99 (746007) on Friday July 23, 2004 @02:25PM (#9781923)
    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.

  • by Anonymous Coward on Friday July 23, 2004 @02:37PM (#9782054)
    http://www.sitecom.com/WL-122_gpl.zip
    http://www. sitecom.com/WL-111_gpl.tgz
  • Absolutely not. (Score:3, Informative)

    by AzrealAO (520019) on Friday July 23, 2004 @02:41PM (#9782099)
    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:How important? (Score:3, Informative)

    by lelitsch (31136) on Friday July 23, 2004 @02:45PM (#9782166)
    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.
  • 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.

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