[License-review] Request for a new license review [Luther-LAW_DE.FID5237501]
Wayne Thornton
wmthornton-dev at outlook.com
Thu Jan 30 14:17:35 UTC 2025
License-review Thursday, January 30 at 5:46?AM
Since it has to be an Open-Source license due to funding requirements (usually a requirement in the public sector in Germany), we decided to submit this license to the Open-Source Initiative
I think it would be pertinent to ask whether the requirement for an open source license being used in Germany means that it has to be a registered open source license or whether a developer can simply draft a license such as the one under review and deem the software open source according to that license?
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From: License-review <license-review-bounces at lists.opensource.org> on behalf of Langenheim, Niccolo <niccolo.langenheim at luther-lawfirm.com>
Sent: Wednesday, January 29, 2025 8:37:06 AM
To: License submissions for OSI review <license-review at lists.opensource.org>
Subject: Re: [License-review] Request for a new license review [Luther-LAW_DE.FID5237501]
Dear Pam,
thanks for your positive feedback. I also hope that the OSC license will be approved as soon as possible as an Open-Source license. I would like to stress once again the urgent need for the license to be written in German.
In response to your questions, I would like to explain the following:
1. EUPL Limitation of Liabilily:
The EUPL license provides that liability only applies in cases of intent or personal injury. I think this limitation of liability was chosen in particular to achieve a European compromise on the limitation of liability. However, German courts have long since prohibited the exclusion of liability for the negligent non-fulfilment of so-called “cardinal obligations”. Likewise, the German Civil Code (BGB) contains provisions at various points (depending on the type of contract) that an exclusion of liability does not apply if defects have previously been fraudulently concealed (see, among others, §§ 444, 536d, 639 BGB). In order to cover this legal condition and to make the limitation of liability as legally secure as possible, we have also included these restrictions.
1. Comparison of the limitation of liability under donation law and the contractual limitation of liability:
According to § 521 BGB, the donor is only liable in the event of intent or gross negligence. The limitation of liability according to § 521 BGB is thus more comprehensive than the limitation of liability I proposed in the OSC license. In contrast to the limitation of liability according to § 521 BGB, the licensor is also liable for the fraudulent concealment and the negligent breach of a cardinal obligation in the case of the OSC license. In summary, it can be said that the German legislature has provided a limitation of liability in the context of donation law that goes beyond a contractually possible limitation of liability.
1. Purpose of the OSC license:
Our client, the city of Solingen, is working with other cities in Germany to develop a software program that is to be made available under this new license. Please excuse me for not being able to share further information on this project due to client confidentiality. Since various German cities are involved, there is a particular need to use an Open-Source license that allows the greatest possible freedom (as with the MIT license), is written in German and includes a limitation of liability that is effective under German law and holds up in German courts. According to our research, such a license does not currently exist. Therefore, the need arose to register a new license. Since it has to be an Open-Source license due to funding requirements (usually a requirement in the public sector in Germany), we decided to submit this license to the Open-Source Initiative. In this respect, I can understand your argument that a non-lawyer, when faced with the choice between the original MIT license and this license, would always choose the MIT license – however, in the public sector, the necessity for such a license is given, in particular due to the effective limitation of liability.
I am happy to answer any further questions.
Kind Regards,
Niccolo Langenheim
________________________________
Niccolo Langenheim, LL.M.
Rechtsanwalt
IP/IT
Luther Rechtsanwaltsgesellschaft mbH
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From: License-review <license-review-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
Sent: Samstag, 25. Januar 2025 18:04
To: license-review at lists.opensource.org
Subject: Re: [License-review] Request for a new license review [Luther-LAW_DE.FID5237501]
Dear Niccolo,
Thank you very much for the clear explanation, it was very helpful. Let me say first that I don't see any problem with approving it as an open source license (my personal opinion only). I can't think of any reason why a license that accepts greater liability would contradict the OSD. I hope more German speakers will weigh in, though, on whether there is any changed meaning because of the translation - Dirk provided some feedback and it would be useful to have more.
My questions are more about its usefulness.
I assume the exclusion as you have written it is identical to what German law says cannot be excluded, even by contract? I ask because the EUPL excludes only "wilful misconduct or damages directly caused to natural persons," which seems much narrower than your proposal, "INTENT, FRAUDULENT MISREPRESENTATION, GROSS NEGLIGENCE, INJURY TO LIFE, LIMB OR HEALTH AND INSOFAR AS LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW." If the license is deemed to be a gift, does this language expose someone to greater liability than they would have because, contractually, they agreed to it? In other words, are the exclusions for gifts and the exclusions that are permitted in contracts the same, and reflected in your language?
I am also curious about the audience for this license. You mention that you are working on behalf of the city of Solingen. Will they be adopting the license for their own works? My thought is that a non-lawyer, when confronted with the choice of the original MIT license and this license, will always choose the MIT license because no one who would choose a limitation that is less comprehensive than one that is more comprehensive, unless they understand everything you explained below. So I wonder who would actually choose this license, even if it is the better choice under German law.
And doesn't the city of Soligen have some kind of limitation on liability because it is a governmental unit?
Thank you for the time you are taking to respond, I appreciate it.
Pam
Pamela S. Chestek
Chestek Legal
4641 Post St.
Unit 4316
El Dorado Hills, CA 95762
+1 919-800-8033
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On 1/23/2025 2:54 AM, Langenheim, Niccolo wrote:
Dear Pam,
First of all, I would like to confirm that your assumption is correct, that this is essentially the MIT license with a modified limitation of liability adapted to German law.
Regarding the questions about the limitation of liability, I would like to explain the following:
I would like to provide a brief introduction to the legal assessment of a limitation of liability in Open-Source licenses. A limitation of liability can, on the one hand, result from the applicable statutory law (as is the case with Liability of the donor according to § 521 BGB) or, on the other hand, be agreed individually by contract between the parties. According to § 521 BGB, the donor (licensor) is only liable for intent and gross negligence. In order to assess whether a statutory limitation of liability is applicable, it must first be determined which type of contract the Open-Source license falls under. In German legal literature, it is predominantly assumed that Open-Source licenses are generally subject to the donation law and that a limitation of liability within the limits of § 521 BGB therefore applies.
However, I would like to emphasize that this is only the opinion of the legal literature. We are not aware of any court ruling that confirms this view. In this respect, there is a risk that a court may come to a different legal conclusion. For example, a court could evaluate the Open-Source licensing as normal licensing, with the result that, depending on the design, the provisions of the purchase, work or rental contract are applicable. These provisions do not have a limitation of liability comparable to the donation law.
In order to exclude this risk and to agree on an effective limitation of liability independently of the legal assessment of the courts, it is therefore advisable to include an individual contractual limitation of liability in the license agreement. This was done in the original MIT license, but the limitation of liability in the standard MIT license does not meet the German legal requirements for an effective limitation of liability, since all liability (regardless of the type of damage and intentional commission) is excluded. This is invalid according to Section 309 No. 7 of the German Civil Code (BGB), with the consequence that the entire limitation of liability is invalid.
This means that the product can be licensed according to the conditions that go beyond the limitation of liability, but an effective limitation of liability has not been agreed. It follows that the licensor is liable without limitation for any damages in accordance with the statutory provisions. In summary, this creates a liability risk for the licensor.
I hope that I have been able to answer your questions with the above information and I am happy to answer any further questions.
Kind Regards,
Niccolo Langenheim
________________________________
Niccolo Langenheim, LL.M.
Rechtsanwalt
IP/IT
Luther Rechtsanwaltsgesellschaft mbH
Anna-Schneider-Steig 22 (Rheinauhafen), 50678 Köln, Germany
Phone: +49 221 9937 21105
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From: License-review <license-review-bounces at lists.opensource.org><mailto:license-review-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
Sent: Mittwoch, 8. Januar 2025 08:56
To: license-review at lists.opensource.org<mailto:license-review at lists.opensource.org>
Subject: Re: [License-review] Request for a new license review [Luther-LAW_DE.FID5237501]
Niccolo,
As you mentioned, this is essentially the MIT License with a modified limitation of liability. You have said "the versatile MIT license does not contain a limitation of liability that is effective under German law." I would like to understand more about how the MIT License would be interpreted under German law. If the limitation of liability in it is not effective, how would the document be construed? Is it ineffective altogether, so there is no grant of a license at all? Of is the offending paragraph stricken, so license is effective but there is no limitation on liability?
If that is the case, what is the possible liability of the authors or copyright holders where there is no limitation? For example, the language in your proposed license is "IN THE EVENT OF NEGLIGENT BREACH OF AN OBLIGATION, WHOSE FULFILLMENT IS ESSENTIAL FOR THE PERFORMANCE OF THE CONTRACT (CARDINAL OBLIGATION), THE LIABILITY OF THE AUTHOR OR COPYRIGHT HOLDER IS LIMITED TO THE AMOUNT OF DAMAGE THAT IS FORESEEABLE AND TYPICAL AT THE TIME THE CONTRACT IS CONCLUDED." Without that language, what is the extent of the liability the author or copyright holder might have? For example, would they be liable for non-negligent acts?
I'm just trying to understand what the advantage is to stating the lawful boundaries of a limitation of liability versus what will happen with an unenforceable limitation - that is, if the MIT license, with an unenforceable limitation, nevertheless ends up in about the same place.
Just also as a general point of information for readers, in the US it varies from state to state, but in general we also cannot disclaim liability for intentional, fraudulent, or grossly negligent acts. But most likely a could would just ignore the attempt and allow the limitation to the extent it is lawful.
Thanks,
Pam
Pamela S. Chestek (in my personal capacity)
Chestek Legal
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On 12/23/2024 3:17 AM, Langenheim, Niccolo wrote:
Dear all,
first thanks for the helpful feedback so far. Please find attached a first version of the English license text. We are still looking for an Open Source valid certified translator who will submit a certified translation. As soon as we have such a certified translation, we will make it available to you immediately. As we need to have a German license text, we need an official, and OSI-approved text of those licenses in German.
The following is also the other requested information for the review process:
1. A copy of the license in both German and English can be found in the attachment in plain text format.
2. I hereby confirm that, to the best of my knowledge, the license submitted complies with the Open Source Definition and in particular fulfills OSD 3, 5, 6 and 9.
3. Since the license is to be used and created for the first time for a cross-city project, there are currently no projects using the license. However, it is planned that the license will be used in mid/late January.
4. The name of the license is OSC License and the version number is 1.0.
5. Need for regulation: Based on the queries, I would like to reiterate that the problem with the invalid limitation of liability mentioned in the previous email does not only exist in the public sphere (cities, etc.), but for anyone who wants to use the license. Regarding the distinction between the rights holder and the author, I would like to state the following:
Copyright arises from the act of creation. It encompasses a range of powers of the author to use and exploit his work, which will be explained in more detail below.
However, a distinction must be made here between two essential concepts:
On the one hand, there is the highly personal right as the author. It is inextricably linked to the person of the author – which is why it is also referred to as the author's moral right. This right cannot be transferred to another person by contract, nor can another person be contractually designated as the author if the latter was not directly, practically and personally involved in the creation of the work. Furthermore, the author cannot waive his or her (moral) right of authorship.
The moral rights of the author are to be distinguished from the rights of use and exploitation of a work – these can be transferred to other persons, for example by means of a license agreement. In order to take into account this possible, but not mandatory, disassociation of the author and the rights holder, both are included in the license.
Please do not hesitate to contact me if you have any further questions and please let me know if you require any further information.
Kind Regards
Niccolo Langenheim
________________________________
Niccolo Langenheim, LL.M.
Rechtsanwalt
IP/IT
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From: License-review <license-review-bounces at lists.opensource.org><mailto:license-review-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
Sent: Freitag, 13. Dezember 2024 05:09
To: license-review at lists.opensource.org<mailto:license-review at lists.opensource.org>
Subject: Re: [License-review] Request for a new license review
Hi Niccolo,
Can you submit it with the information described on this page? https://opensource.org/licenses/review-process
Since this is not in English, we will also need a certified translation of the license.
Thanks,
Pam Chestek
Chair, License Committee
Open Source Initiative
On 12/11/2024 1:58 AM, Langenheim, Niccolo wrote:
Dear Open Source Initiative Team,
With this e-mail I am submitting a new Open Source license on behalf of my client, the city of Solingen in Germany. The need for the new license stems from the fact that the versatile MIT license does not contain a limitation of liability that is effective under German law. Even if it is predominantly assumed in the specialist literature that Open Source licenses are generally subject to donation law and therefore more favourable liability and warranty rights apply, it has not yet been confirmed by the courts. This results in the risk that courts may adopt a different legal interpretation in the event of a dispute, with the result that the statutory liability limitations of donation law no longer apply. However, it is particularly important for public law projects of cities, municipalities, etc. to agree a legally secure limitation of liability that guarantees a limitation of liability regardless of the legal classification.
In order to close this gap in the limitation of liability and at the same time benefit from the advantages of an MIT license, we have drafted the following license, which, apart from an effective limitation of liability, is based on the MIT license:
Copyright (c) <Jahr> <Copyright Inhaber>
Jedem, der eine Kopie dieser Software und der zugehörigen Dokumentationsdateien (die „Software“) erhält, wird hiermit kostenlos die Erlaubnis erteilt, ohne Einschränkung mit der Software zu handeln, einschließlich und ohne Einschränkung der Rechte zur Nutzung, zum Kopieren, Ändern, Zusammenführen, Veröffentlichen, Verteilen, Unterlizenzieren und/oder Verkaufen von Kopien der Software, und Personen, denen die Software zur Verfügung gestellt wird, dies unter den folgenden Bedingungen zu gestatten:
Der obige Urheberrechtshinweis und dieser Genehmigungshinweis müssen in allen Kopien oder wesentlichen Teilen der Software enthalten sein.
DIE AUTOREN ODER URHEBERRECHTSINHABER HAFTEN UNBESCHRÄNKT BEI VORSATZ, ARGLISTIGER TÄUSCHUNG, GROBER FAHRLÄSSIGKEIT, DER VERLETZUNG VON LEIB, LEBEN ODER GESUNDHEIT UND SOWEIT DIE HAFTUNG GESETZLICH NICHT BESCHRÄNKT ODER AUSGESCHLOSSEN WERDEN KANN. BEI FAHRLÄSSIGER VERLETZUNG EINER PFLICHT, DEREN ERFÜLLUNG WESENTLICH FÜR DIE DURCHFÜHRUNG DES VERTRAGS IST (KARDINALPFLICHT), HAFTEN DIE AUTOREN ODER URHEBERRECHTSINHABER DER HÖHE NACH BEGRENZT AUF DEN SCHADEN, DER BEI VERTRAGSSCHLUSS VORHERSEHBAR UND TYPISCH IST.
DARÜBER HINAUS IST EINE HAFTUNG AUSGESCHLOSSEN.
DIE VORSTEHENDE HAFTUNGSBESCHRÄNKUNG GILT AUCH FÜR DIE HAFTUNG DER MITARBEITER, VERTRETER UND ORGANE DER AUTOREN ODER URHEBERRECHTSINHABER.
Finally, I would like to note that the license has been legally reviewed by our law firm.
I will be happy to answer any further questions.
Kind Regards
Niccolo Langenheim
________________________________
Niccolo Langenheim
Luther Rechtsanwaltsgesellschaft mbH
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