(OT) - Major Blow to Copyleft Theory

Alexander Terekhov alexander.terekhov at gmail.com
Mon Aug 27 15:10:42 UTC 2007

On 8/27/07, Arnoud Engelfriet <arnoud at engelfriet.net> wrote:
> Michael Poole wrote:
> > Does such a distinction exist under civil law?  If not, the difference
> > in contract formation may not be relevant.  Judging from Harald
> > Welte's gpl-violations.org efforts, specific performance is an
> > available remedy under German law.


Welte's attorneys from ifross.de are pushing rather curious German GPL
construction theory based upon German concept of "condition
subsequent" (§ 158 Abs. 2 BGB) under which any transgression simply
terminates the contract without any notice, ability to cure, etc. and
it actually precludes specific performance as remedy.


The court interpreted the GPL in the light of the German model of
"condition subsequent" based upon Sect. 158 of the German Civil Act
(BGB). The court argued that infringements of the GPL would lead to an
automatic loss of rights, based upon a condition subsequent. The user
of open source products gets the license to use the product only on the
condition that, and as long as, he sticks to the rules of the GPL. The
Court held that this extremely tight link between the use right and the
GPL would not prevent the software product from being marketed, as a
third party would be able at any time to re-acquire the rights from the
software developer. However, sects. 2 and 4 of the GPL do not refer to
the German concept of conditions. Sect. 4 refers to particular rights
"provided that". Sect. 2 uses the term "conditions", but in a very
broad and general sense, such as a contractual term which has to be
met. It might well be that a violation of the GPL leads to contractual
remedies for non-performance, but not to an automatic loss of use rights.

> As far as I know, specific performance is a routine remedy
> under European civil law. You promised to do X, and you
> did not, so the court now makes you do X. Under penalty of
> daily fines if necessary.
> I've never understood the reason why specific performance is
> something special under common law.

The contract laws recognize a concept called "efficient breach" which
encourages breach of a contract if it's economically efficient to do
so.  Compliance with a contract is almost always voluntary -- if you
choose not to comply, then you don't have to. You merely have to
compensate the non-breaching party for his expectancy interest.

IBM: "SCO's GPL violations entitle IBM to at least nominal damages on
the Sixth Counterclaim for breach of the GPL. See Bair v. Axiom Design
 LLC 20 P.3d 388, 392 (Utah 2001) (explaining that it is "well
settled" that nominal damages are recoverable upon breach of
contract); Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)
("Nominal damages are always available in breach of contract
action".). "

See? IBM seems to know quite well that the GPL is a contract. :-)


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