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Re: Use of GPL'd code with proprietary programs

From: Alexander Terekhov
Subject: Re: Use of GPL'd code with proprietary programs
Date: Tue, 23 Nov 2004 17:46:05 +0100

Rui Miguel Seabra wrote:
> No. Justice in Europe is a bit slower than in the USA, that's why you
> have court orders to help prevent the potential damage.
> It is totally to the judge's reasoning to decide which side *could* be
> right on a first look basis, and then decide wether to issue a court
> order.
> I'd like to believe judges don't do this lightheaded, but your mileage
> might vary 'lex, since you seem to show much contempt against so many
> judges by painting them as drunken, and such.
(The first-ever ruling on the legal validity of the GPL - A Critique 
 of the Case By Professor Dr Thomas Hoeren, Visiting Fellow at the 
 Oxford Internet Institute)


1. The decision of the District Court of Munich is celebrated as the 
first-ever judgement on the validity of the GPL. That is surprising. 
The decision is the judgement of only a single district court in 
Germany. And it is only a summary and preliminary decision based on 
injunctive remedies. Furthermore, the judgement refers to only one 
special case within the Open Source scene. There was only one main 
developer involved in this project, so there was no need to decide, 
for example, on the complicated questions of rights ownership 
involved in Linux. 

2. Given the high importance that the Open Source community 
attributed to the judgement, the Court’s legal arguments are 
extremely poor. I do not want to deal with the many spelling and 
grammatical mistakes in the original version of the decision; such 
things happen in the heat of the moment. But it is even more 
astonishing that most of the relevant legal literature has not been 
considered. The Court essentially refers only to an essay from 
Metzger/Jäger written in 1999, apart from two essays from Omsels and 
Plaß. None of the critical voices about the effectiveness of the GPL 
have been heard. 

3. Apart from these formalities, the argumentation of the judges 
raises many questions and prompts many criticisms. 

a. The homepage of the plaintiff included a link to the GPL version 2 
(June 1991), an American document of the FSF. However, the US version 
of the GPL was not considered by the Court. Instead the Court used an 
unofficial German translation without devoting even a single sentence 
to justifying this approach. The judges also did not mention the 
history of the GPL, nor did they ask how the GPL might be interpreted 
under US rules on the interpretation of contractual documents. They 
simply applied German methodology and concepts to a document whose 
legal roots are deeply intermingled with US law and the US Open Source 

b. 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. 

c. To operate with a condition subsequent is “beating the devil with 
the devil”. If I were a producer of proprietary software products, I 
would be very happy with the judgement of the district court because 
nobody can prevent the producers of proprietary software from likewise 
using a condition subsequent. They can now restrict the transfer of 
sold software to third persons or the use of a programme on different 
computers by combing these (invalid) contractual restrictions with a 
condition subsequent related to the “license”. If you pass software to 
anybody else or use it in another computer, you (and the third person) 
automatically lose your right to use the software. Everything courts 
had said on the (in-) validity of contractual use restrictions in the 
software business is now going to be undermined by the model of the 
condition subsequent. 

d. Why does the GPL call itself a “license”? The term “license” is 
not used in the German Copyright Act and is not known in Continental 
European copyright law. That is good: the term “license” is nebulous 
and has been used in business as a smokescreen to mask the invalidity 
of “license” restrictions. In recent years the license model has been 
efficiently refuted by European courts and traced back to traditional 
concepts such as the purchase of rights or a legal lease. The district 
court should have dealt with this opinio communis. But what happened 
in Munich? 

e. The ignorance of the Munich court as to the opinio communis can 
also be demonstrated in connection with the problem of exhaustion. If 
the GPL is regarded to be binding even in cases of the transfer of 
software to a third person, the concept of exhaustion might be 
violated. The European Software Directive has provided that the 
exhaustion of the copy of a program is applied Community-wide by a 
first sale of that copy in the Community with the consent of the right-
holder; once an author has sold a copy of a work, he or she loses the 
exclusive distribution right with respect to that work. A contractual 
limitation of this principle is held to be invalid, at least in 
Germany and Austria. The Munich court obviously did not know of these 
developments; instead it simply stated that the German copyright 
legislator had once expressed its support for Open Source. However, 
this support has been given only in other legislative debates 
regarding mandatory rights of creators to adequate remuneration. But 
even if the legislator generally likes Open Source, it does not at all 
mean that the legislator supports and considers every rule of the GPL 
as legally effective. 

f. En passant, the Court raised some more radical questions without 
giving good arguments. For instance, the Court claimed that a non-
exclusive license gives a right in rem; this contradicts the 
interpretation of the Federal Supreme Court, which held that non-
exclusive use rights are not property rights but contractual rights 
(BGH, GRUR 1959, 201, 202 – Heiligenhof). The court has not really 
discussed rules relating to the conflict of laws. Of course, copyright 
law is governed by the principle of territoriality. But what about the 
relevant rules for contractual aspects, as with the interpretation of 
the GPL (see above) or the applicability of regulations concerning 
unfair contract terms? 

g. Finally, there is the important question of the consequences of the 
assumed invalidity of the GPL. The Munich court argued that the 
question of the enforceability of the GPL was in no way relevant. 
According to the Bavarian judges, if the GPL is legally ineffective, 
the user does not have a license and is thus violating copyright law. 
On the face of it, that sounds plausible, but it is not. If somebody 
offers software on the Internet for downloading and links the download 
with invalid general terms, he can hardly sue for copyright 
infringement. Instead, the validity of the standard terms is a matter 
for the software distributor: if he wants to use invalid contractual 
terms, he bears the risk of their use. It would violate equity and 
good faith if he were allowed to sue others merely on the grounds that 
his license terms were invalid.




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