Germany

[Alexander Eichler]

Hi all,

Following the IPL discussion started by intraDAT we have received quite
some requests for information concerning legal problems with GPL in
Germany.

Under German law there are a couple of problems with Open Source Licensing,
e.g. it is impossible under German law to have no liability for Open Source
Software. On the other hand, GPL says that there is no liability.

I learned that this is a problem in some states in US too.

In Germany lawyers discuss if it is possible under copyright law to leave
all rights to use to the public domain. GPL is not quite clear in this.
Literature here in Germany says that GPL is founded on copyright law (same
in US, it needs copyright law to act like it does. Conclusion is, that GPL
is only a possibility to give the right to use to somebody else. Copyright
beneath this still exists. So GPL is a license agreement. As any other
agreement it can be terminated! New forms of usage of the software are not
covered by GPL, so there might be a different license agreement for that.

In US it is said that there is no way to prevent people of distributing
derivative works. There is a discussion whether GPL is an agreement, a
release or a waiver. If it is a release or a waiver then the contents would
be, that the licensor will not sue for copyright infringment. Both
principles will not construe any contractual relationship between the
parties. On the other hand GPL might be an agreement with the same content
but with contractual relationship and with respective possibilitys.

In Germany there is no way to do so. We do not have the principles release
or waiver in case of copyright as far as this means that a right is given
up. In case of the right of use it is highly discussed if such waiver is
possible, the majority seems to deny this.

So the only possible way to bring the software to the market under German
law is to have a contractual relationship between the licensor and the user
(unimportant in which way the software is used).

As I understand it is possible under US and it is possible under German law
to have the clause in the GPL, that derived works have to be licensed under
GPL.

If the author of the derived work does not give that together with GPL away,
then GPL is automatically terminated and copyright law is in act without any
modification. This should be the same in US.


Best regards

Alexander Eichler
Rechtsanwalt


Graf von Westphalen Fritze & Modest
Marsstra?e 33
80335 Munchen
Germany
Tel: +49 (89) 54 83 83
Fax: +49 (89) 54 83 84 80
alexander.eichler at wfm.de
http://www.osbornewestphalen.com