German Court Says GPL is Valid 327
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."
Before partying.. (Score:5, Informative)
Re:Before partying.. (Score:5, Informative)
Re:Before partying.. (Score:5, Informative)
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.)
Re:Before partying.. (Score:2)
The implication that the German decision has little to do with the US is unfounded; the two systems are so sufficiently similar that the decision would have been the same in the US.
Re:Before partying.. (Score:2, Informative)
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 glosse
Re:Before partying.. (Score:4, Informative)
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.
Re:Before partying.. (Score:2)
I don't know why the parent posters couldn't reach this understanding.
Oh where are my mod points....
True, however (Score:5, Interesting)
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.
Re:True, however (Score:3, Interesting)
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,
Re:True, however (Score:2)
The only time it becomes grey is if your trying to circumvent it, in order to steal the code without giving anything back... or if a certain monopoly is spreading FUD claiming it works in a manner it doesn't.
Re:True, however (Score:2, Interesting)
in germany that can't work out as PD doesn't really exist here
Re:True, however (Score:2)
Anyway, SCO really doesn't have any applicable copyright claims in their ammended complaint to push the issue. Just another example of them reaching for straws.
Re:True, however (Score:2)
Well... since SCO looks quite desperate now, they might try to solve this problem in the simplest possible way...
Very common misconception (Score:5, Interesting)
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.
Re:Very common misconception (Score:2, Interesting)
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
Re:Very common misconception (Score:3, Informative)
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, th
Re:Very common misconception (Score:2)
There isn't a grey area here as wide as people would like to make out. It only becomes this wide if you start magically deciding on your own des
Re:Very common misconception (Score:2)
In the literary world, you can, for example, have a collective copyright on a collection of short stories -- This would be despite the fact that each short story wourld be (clearly) copyright it's own author (and still is). The collective copyright would be as a derivative of it's consituant parts.
Although the GPL explicitly excuses the case of a loose collective
Re:Very common misconception (Score:2)
Re:Very common misconception (Score:2)
I mean unless they are actually using part of the linux kernel or subsystem in such a way it is being distributed with the driver then they arent actually distributing anythign open source. It could be argued that just because it is designed to work with foss objects doesn't mean they are distributing it with them. From what i can tell, and i'm not a programer so i could be wrong, you have
Re:True, however (Score:3, Insightful)
Re:True, however (Score:2)
Microsoft does not use copyright to open software, so it's not a judo move. It's more like a sumo move, pushing the opponent around with force, mass, and momentum.
Re:True, however (Score:2)
The Microsoft EULA imposes restrictions for use, something they assume they can do but copyright law doesn't say they can. Copyright law gives them some control over copying and control over distribution, it gives them no authority whatsoever regarding use.
Re:True, however (Score:2)
Almost all GPL attacks can be refuted by one of two statements:
1) No company or individual has to accept the GPL in order to use the product.
2) Whatever your criticism of the GPL, if you reword that criticism to "INSERT PROPRIETARY EULA HERE", the GPL winds up looking 10x as good as the proprietary one (most journalists fail to ask themselves if the same criticisms applies to the proprietary licenses, and they usually do in spades).
The only legitimate criticisms I've found are those between F
People who whine that the GPL "restricts rights".. (Score:2)
It's like complaining that abolition of slavery restricts the rights of slave traders and owners. Jesus H. Christ on a stuffed platypus.
Re:People who whine that the GPL "restricts rights (Score:2)
The one thing I've never understood about RMS is that he claims to both be an atheist and believe in evil. While I can see how a pantheist can believe in evil, I have trouble seeing how atheism and the belief in evil mesh.
Re:People who whine that the GPL "restricts rights (Score:2)
"Oh, and atheists do often believe that some things are right and other things are wrong"
But I don't see where such concepts such as "right" and "wrong" can come from in a pure atheistic mentality. Why would something be "right" or "wrong" if everything is _only_ a sophisticated collection of atoms. Why are the atoms of a carbon-based form of more worth than silicon?
Re:People who whine that the GPL "restricts rights (Score:2)
The reasons are the same regardless of religous views or lack thereof. Human nature is subjective, and so is "good" and "bad". Religeon is an attempt to objectify these subjective age-old concepts.
Re:People who whine that the GPL "restricts rights (Score:2)
The problem is that a given person must decide what is good and bad. I don't see how the fundamentals of atheism fits with any other morality than "do what comes naturally to me". I'm not saying that atheists don't have morals, but that atheistic philosophy isn't what is producing them or even necessarily fully compatible with them (obviously, atheism isn't a complete rampart against them - after all, if there's nothing to it, then going with it an
Re:People who whine that the GPL "restricts rights (Score:2)
Re:People who whine that the GPL "restricts rights (Score:2)
This statement is only the negative way of restating the famous Golden Rule [biblegateway.com], spoken by that great atheist, Jesus.
Err... hmmm.
Re:People who whine that the GPL "restricts rights (Score:2)
Re:People who whine that the GPL "restricts rights (Score:2)
Yeah, but wouldn't it be a whole lot cooler if some regular atheistic non-deity-type guy had come up with it?
Re:People who whine that the GPL "restricts rights (Score:2)
Isn't that pantheism?
"Some have the categorical imperative, some believe people should be as free as possible, some want the greatest happiness for the greatest number, and some just believe in a few old laws carved on a rock by a mad old dude halfway up a mountain three thousand years ago. Take your pick!"
That's kind of what I'm asking, how would an a
It's nice (Score:4, Interesting)
Re:It's nice (Score:5, Funny)
anyway, can't folks in the judicial system can still use this as 'precedent' in a way?
No, it can't (Score:3, Informative)
BTW, IANAL.
Re:No, it can't (Score:2)
Re:It's nice (Score:5, Insightful)
Re:It's nice (Score:2)
Which is rather sad. In spite of the nice feeling of togetherness such logic makes, it is inherently wrong. The purpose of any court is to determine the application of a particular law to a particular situation or in the case of the U.S. Supreme Court, to test the legality of a law under the U.S. Constitution. Foreign rulings on similar cases should hav
Re:It's nice (Score:2)
Why should judges not study the law in other countries, too?
If identical cases are tried in two different countries, the second trial court would be foolish not to look at the reasoning and arguments in the other case. Looking at rulings in other countries that have similar legal structures and traditions is not unreasonable.
Re:It's nice (Score:4, Insightful)
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".
Re:It's nice (Score:2)
Allies that seriously disagree about important issues central to the alliance are, by definition, not allies.
No matter how much they claim to be. (France is no longer an ally in most regards; that may change somewhat with their next election. I don't think our next election will matter either way.)
Certain people's inability to understand this is quite frightening. (Not yours, though, unless you ar
Re:It's nice (Score:2)
this is definitely true, but i would argue that your closest allies are not necessarily the ones that agree with you right this moment. for example, if britain had disagreed with us about iraq, and germany had agreed, i bet britain would still be a closer ally. there's the whole idea of being "allied against such" and such, which is slightly different from being allied in general.
(Not yours, t
Re:It's nice (Score:3, Insightful)
Re:It's nice (Score:2)
German law is quite different in this respect. It does not know the concept of binding precedent. The juridical system is solely based on law.
BTW: the court is a so-called "Landgericht", which is still a regional court, but not the lowest level (that would be "Amtsgericht" - municipal court), because the amount of money in dispute was fixed to the rather large sum of 100.000 Euro.
Re:It's nice (Score:2)
I can, and do, ask people for advice from time to time. Sometimes I follow the advice I get. Sometimes I don't. Not following advice is not the same as not not getting advice.
Re:It's nice (Score:2)
Exactly when do you think the US ever has?
Re:It's nice (Score:2)
That doesn't in any way mean that the GPL will be overruled in the US. Just because we don't do everything Europe does doesn't mean we never do the same thing.
Re:It's nice (Score:2)
The European countries often give the U.S. the choice between undermining its own national interests, or doing what is best for the U.S. and being criticized for being unilateral, not caring about the international community, and so on. Consider the things some of our "closest allies" have asked the U.S. to do:
Leave Saddam Hussein in power. He was such a nice guy.
Sign the Kyoto protocol. This would be a big negative impact from a commerce/economic perspective, and of debatable environmental benefit.
My translation: (Score:5, Informative)
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
Truly a reason to rejoice, for Jaeger and for us!
Re:My translation: (Score:3, Insightful)
American Courts (Score:5, Funny)
Mr. McBride takes the stand... (Score:5, Funny)
Darl McBride: No no! That's German for "The GPL, the".
Jury mumblings: Well, no one that speaks German can be evil! NOT GUILTY!
Awesome (Score:2)
This is good news (Score:3, Interesting)
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.
Re:This is good news (Score:2)
That is true anyway. The GPL does not require agreement to use the software. It only governs distribution.
brings up a question (Score:4, Insightful)
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.
Re:brings up a question (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
Re:brings up a question (Score:2)
Re:brings up a question (Score:2)
The beauty of precedent (we dont have a precedent here yet) is that you usually don't HAVE to deal with lawsuits. Once the GPL is found to be fully legal and binding, if XYZ Inc. is infringing, FSF sends a letter to them saying to release the source, then XY
Re:brings up a question (Score:5, Insightful)
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... (Score:3, 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.
How important? (Score:4, Interesting)
you're right (Score:3, Informative)
Re:you're right (Score:2)
"Some remaining vestiges"? You mean the part about our law code being based on the Napoleanic Code? It's way more than "some remaining vestiges".
Re:you're right (Score:2)
Your courts follow stare decisis (respect of court precedent in addition to statute). Thus, you have fallen in line with the rest of us.
Re:How important? (Score:3, Informative)
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
Re:How important? (Score:2)
All top German federal courts can and do issue decisions that are binding to the lower courts. What you call the "Federal Supreme court" , i.e. the Bundesverfassungsgericht, only judges constitutional issues.
Also the State Appeals court (Oberlandesgerichte) decisíons are widley considered by lower courts and have quasi - though not strictly - binding character.
Took long enough! (Score:3, Interesting)
I guess it's a testament to the plain english and common sense language of the licence.
Re:Took long enough! (Score:2)
1. The GPL is valid. Comply with the terms of the license or cease all distribution.
2. The GPL is not valid. You have no right to distibute anything released the GPL you didn't write yourself because of b
Re:Took long enough! (Score:2)
3. The GPL is partially valid. You can distribute the software even if you don't comply with all the terms.
No (Score:2)
That the owner of a copyright on a work does not get to dictate the terms and conditions that one must fulfill in order to copy and distribute the work. Whether what is being demanded or not is improper or not is irellevant, under copyright law, you do NOT have permission to distribute a work without a license to do so from the copyright holder.
For what it's worth. I could be a copyright holder on a work and demand that in order to obtain the
Re:No (Score:2)
Just like if I have a lease with my landlord containing an unenforceable clause, I can get that clause invalidated without voiding my lease.
Re:Took long enough! (Score:2)
Note also that ruling 4 and 5 invalid would likely make all current EULAs invalid as well.
I also suspect very much that since only section 7 is severable, that declaring 4 and 5 invalid would render the whole license invalid, thus unvoking Copyright Law.
Any lawyers out there who can offer a better opinion?
Me too (Score:2)
Damien
All I have to say is (Score:2)
Some perspective... (Score:5, 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.
somewhat related question (Score:4, Interesting)
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?
Re:somewhat related question (Score:4, Informative)
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.
minor nitpick (Score:2)
No - if it's compiled as part of the binary, then it's covered under the GPL as well, and you thus *do* have the rights to distribute it.
Re:somewhat related question (Score:2)
Re:somewhat related question (Score:4, Informative)
Re:somewhat related question (Score:2)
Re:somewhat related question (Score:2)
If you can't provide more specific information, I have to conclude that you are spreading FUD.
why was there ever a doubt? (Score:2)
Re:why was there ever a doubt? (Score:2)
what's with the time-delay? (Score:2)
Take THAT, SCO! (Score:2)
Surely no one from Germany could be evil. Right?
Re:Take THAT, SCO! (Score:2, Funny)
oops
Re:Take THAT, SCO! (Score:2)
GPL Valid? (Score:3, Interesting)
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.
I Wonder.... (Score:2)
Absolutely not. (Score:3, Informative)
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.
First DaimlerChrysler Wins Dismissal, Now This... (Score:2)
IANAL (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.
ehm... just wondering (Score:2)
The GPL has more sections than 2 3 and 4... what about the other sections? If those are invalid, the GPL as a whole doesn't mean anything, right?
The Company (Score:2)
Name of parent company blacked out in German text (Score:2)
An immediate consequence of this judgment will be that Sitecome will not be able to market their offending router products in Germany unless they start complying to the GPL. There is an interesting twist to this case. The company that has been sued in Germany is named on Sitecome's website as distributor for Germany - they also happen to be a wholly owned subsidiary. They argued that since
Re:EU Wide? (Score:2)
If the decision stays unchallenged (like in all good juristic systems there is a way to challange the verdict of the court a few times) it will become a example-case in Germany.
Other courts in Germany will probably follow its verdict in similar cases (but are not legally bound to), courts in other EU countries have to deal with other law texts and will probably have to create their own "example" case.