AW: For Approval: German Free Software License

Axel Metzger metzger at
Fri Nov 26 09:07:34 UTC 2004

Hi Russell, hi everybody,

Russell Nelson wrote:

> > You answered only to my last argument. My first and major point is
> > that OSI should treat the non-compliance of license version 2 if
> > this case will occur.  I do not see that this is a problem of
> > version 1.
>The trouble is that you require version 1 users to upgrade to version
>2, whether it complies or not.  You *could* require version 1 users
>upgrade to version 2 if OSI approves version 2.

I understand your point. But it seems to me like a new requirement not
yet stated in the OS-definition. The point is based on some kind of
mistrust that the Ministry and the Max-Planck-Society will use this provision
in the License to rip off programmers. I think that this is wrong.

Please note that the German State of Nordrhein-Westfalen represents
more than 50 (!) universities that will use the license afterwards. The
Max-Planck-Society has about 90 big research institutes. They already
published the GFSL. That means that they cannot just like this change
the rules of the license without having any problem. I know that these
facts do not create as such a feeling of trust. However, I would very much
appreciate if you could take into account the chance to come to some
arrangement between OSI and the GFSL-people. They can survive without being
certified by anybody. This is e.g. the way the French CNRS acts with their
"cecil"-License. I do not see that CNRS even tried to talk to anybody. I am
just saying this to give you a realistic idea about the political
implications. Both sides should be interested to cooperate with the branches
from the other side of the Atlantic.

BTW: perhaps you recognized that my co-author Till Jaeger was the
lawyer of the plaintiffs during the Munich-case concerning the validity of
the GPL. You might know the result. It's the first judgement worldwide
stating that sections 2-4 GPL are perfectly valid under German Copyright and
Contract Law. Till and me built up during the last years
and convinced the German legislature to insert in the Copyright Act spezial
exceptions for Free and Open Source Software. 

However, my preferred model to come to a compromise would be to provide in
the statute of the license board the requirement that "new versions of the
License must be similar in its policies and follow the model of Free and Open
Source Software." If OSI has the manpower to get a member in the license
board one should talk about this. These issues must be considered carefully
with the Ministry and the Max-Planck-Society. I can guarantee nothing.

>Even so, my understanding of contract law is that you cannot agree to
>agree.  You cannot write an agreement that says that we will agree to
>comply with terms as yet unwritten.  Maybe contract law is different
>in Germany?  If your license ends up with terms that 1) don't apply
>non-German distributors, and 2) for the German distributors, the
>do not conflict with the OSD, then we will approve that license
>because everyone gets terms that comply with the OSD.

We (i.e. the lawyers engaged to write the license and the Ministry) proofed
this question in-depth. First of all, it's a contractual issue -
Therefore the choice of law clause in section 10 is applicable. Hence, German
law governs the question if a third party can change the provisions of a
long-term contract. Under German Law a third party can act as some kind of
neutral "referee" between the licensors and the licensees. The German Civil
Code accepts that parties choose a neutral third party to adapt the
provisions of a long-term contract if this is necessary, see section
315 et seqq. German Civil Code. Hence, this is legally feasible.

Best regards,


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