Germany

[Ben Tilly]

IANAL and all that...

"Alexander Eichler" <alexander.eichler at wfm.de> wrote:
>
>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.

Sections 11 and 12 say "to the extent permitted by
applicable law".  So the GPL does not strictly say
that, though it tries to.

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

I would hope that anyone trying to collect on such
would have serious trouble doing so.  Strange things
happen (particularly when lawyers get involved) but I
can hope.

>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.

My understanding (see section 5 in particular) is that
the GPL is intended to be a copyright statement that
also serves as an offer of a license.  If you proceed
to do anything which copyright law says you need
permission you either are in violation of copyright or
you agreed to the license.  (It would be assumed that
you read and agreed to the license.)

This is a novel structure in US law, and I believe it
is unclear how well it would work in court.  See:

http://www.linuxplanet.com/linuxplanet/reports/2000/1/

>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).

I don't see the difference you are alluding to here.
*IF* the GPL works as the design clearly intends, it
would fit what you seem to be describing.  It is a
copyright statement that grants no permissions or
waivers.  However within that copyright there is an
offer of a contract.  Accept that contract and you are
then in a position to do numerous things - BUT your
right to do them depends on your keeping your end of
the contract.

>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.

It is not possible to create a derived work without
permission from the copyright holder.  That permission
is offered in the GPL only if (see section 5) you agree
that derived works must be licensed under the GPL.

Again all of the grants of permissions in the GPL are
contingent upon your accepting its restrictions...

>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.

That is my understanding of the intention.

Again, I am not a lawyer, the GPL has not been (to my
knowledge) tested in court, and I have not (not that I
would have) heard of any other copyright licenses which
try to blend copyright with a contract in this way.
Whether or not the license will work as designed is, I
believe, still open to question.

But the intent appears to be that the GPL should be
enforced as a contract, not a copyright.

Cheers,
Ben

PS Section 5 for those who don't know what I am getting
at is:

  5. You are not required to accept this License, since you have not
signed it.  However, nothing else grants you permission to modify or
distribute the Program or its derivative works.  These actions are
prohibited by law if you do not accept this License.  Therefore, by
modifying or distributing the Program (or any work based on the
Program), you indicate your acceptance of this License to do so, and
all its terms and conditions for copying, distributing or modifying
the Program or works based on it.

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