[verdict in English] German-GPL victorious in Frankfurt district court

[Alexander Terekhov]

Alexander Terekhov wrote:
> 
> http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf
> 
> Man oh man. This is fun.

http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf

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DISCLAIMER: This is an unofficial translation! The correctness or 
exactness of it is not guaranteed or represented in any way. The 
information is not intended to be a comprehensive study, nor to provide 
legal advice, and should not be relied on or treated as a substitute 
for specific advice concerning individual situations


Page 1

Docket Number 2-6 0 224/06
DISTRICT COURT OF FRANKFURT AM MAIN

On behalf of the people
JUDGMENT

In re

Harald Welte, […] Counsel: Attorney-at-Law Dr. Till Jaeger, […], - Plaintiff -

vs.

D… Deutschland GmbH, represented by […] Counsel: […] - Defendant -

the 6th Civil Panel of the District Court of Frankfurt am Main,

through

Presiding Judge […],
Judge […] and
Judge […],

based on the Hearing dated July 26, 2006, renders the following Judgement:

Defendant is ordered to pay to Plaintiff 2,871.44 EUR, plus interest on 
this amount of 5 percentage points above the base interest rate since 
February 25, 2006; regarding the amount of 141.34 EUR, payment shall be 
made in exchange for the transfer of ownership of the data storage unit 
“[…] Wireless G Network Media Storage DSM-G6000” which is owned by 
Plaintiff.

Defendant is ordered to disclose to Plaintiff how many items of the data 
storage unit “[…] Wireless G Network media Storage DSM-G600” Defendant 
has acquired, the number of items of this data storage unit Defendant has 
sold, the identity of the commercial purchasers of the device, and from 
whom Defendant has acquired the data storage units.

Further claims are dismissed.

Defendant bears the costs of the proceedings

The decision is provisionally enforceable if a deposit of 15,000 EUR is 
made. The value of this dispute is set at 10,000 EUR.

Facts

Plaintiff brought claims against Defendant for reimbursement of costs 
and disclosure of information because of a copyright infringement in 
relation to a software program.

Plaintiff is a professional programmer. Defendant is a subsidiary 
company of a Taiwanese manufacturer and acts as a distributor of 
hardware and network components to private and commercial customers. 

Page 2

With three contractual agreements designated “Fiduciary Licensing 
Agreements”, the exclusive rights to copy, to distribute, and of 
public display, as well as the right to allow a third party to 
undertake modifications in the programs, were transferred for three 
software programs to Plaintiff: Mr. Werner Almesberger, who is an
Austrian citizen, transferred these rights to Plaintiff for the 
software “msdosfs” on December 12, 2004 (Annex K5) and for the 
software “initrd” on September 28, 2004 (Annex K7). On November 11, 
2004, Mr. David Woodhouse, a UK citizen, transferred these rights to 
the Plaintiff for the software “mtd” (Annex K9). For further details 
reference is made to the cited agreements.

The three programs “msdosfs”, “initrd” and “mtd” are parts of the so-
called Linux-kernel.

The software “msdosfs” allows access to data files that were stored on 
a data medium by other operating systems. The software “initrd”, among 
other things, makes it possible to start a system in two phases; a 
minimal system is initiated in phase one and additional modules can be 
started in phase two. The software “mtd” contains generic support for MTD 
device drivers as well as an interface for programs that access MTD 
devices, “MTD” being an abbreviation for Memory Technology Devices. 

These three software programs are licensed [by Plaintiff] under the GNU 
General Public License (hereinafter referred to as the “GPL”) exclusively.

The GPL grants anyone who enters into such contract with the licensor the 
right to copy, distribute and modify the software, on the condition that 
the software is again distributed under the very conditions of the GPL, 
in particular by making reference to the GPL, by accompanying it with the 
GPL licence text, by making available the source code and by making 
reference to the disclaimer of warranty. According to Sec. 4 of the GPL, 
any copying, distribution or modification of the software that is not 
accordance with the GPL is void and automatically terminates the rights 
under the licence. However, parties who have received copies, or rights,
under the license from the GPL infringer will not have their licenses 
terminated so long as such parties remain in full compliance. For further 
details reference is made to the submitted copy of the GPL (Annex K11).

In January 2006, Defendant offered the data storage unit “[…] Wireless G 
Network Media Storage DSM G600” (hereinafter referred to as the “data 
storage unit”) for sale. The distribution of the data storage unit did not 
satisfy the conditions of the GPL, since the licence text of the GPL was 
not enclosed, a disclaimer of warranty was not made, and the source code 
was not disclosed.

Plaintiff made a test purchased of Defendant’s data storage unit, from 
which costs in the amount of 141.34 EUR accrued. He reengineered the data 
storage unit in order to investigate the firmware contained in the device.

Through a lawyer’s letter of February 1, 2006, (Annex 12) Plaintiff 
demanded that Defendant cease and desist from its infringing actions, 
asserting that the Defendant used in the firmware of the data storage 
unit  the three programs “mtd”, “initrd” and “msdosfs” without complying 
with the GPL. Defendant thereafter responded that – without acknowledging 
any corresponding legal obligation to do so – Defendant has issued a 
declaration to cease-and-desist. Defendant asserts that the source code 
of the software in question is available for download from Defendant’s 
ftp-server free of charge. Defendant further asserts that Defendant will 
inform its purchasers about the distribution of the devices being GPL 
violating (Annex 13).

By letter of February 10, 2006, Plaintiff called upon Defendant to 
reimburse him for the lawyers’ fees for the formal cease-and-desist letter 
(1.5x the general fee based on a value of the dispute of EUR 150.000,00 
plus expenses, 2,397.50 EUR), the costs of the test purchase and the cost 
for the re-engineering until February 24, 2006 (Annex 14).

Plaintiff alleges that the programs msdosfs, initrd and mtd as well as the 
creative efforts made by Messrs. Almesberger and Woodhouse constitute in 
each case sufficient individual creative achievements to be protectable by 
copyright law. Plaintiff further claims that Mr. Almesberger is the 
creator of the program msdosfs and initrd, and Mr. Woodhouse is the 
creator of the program mtd. Plaintiff asserts that the programs were only 
modified after their initial creation by third parties through the addition 
of open source developments. Plaintiff alleges that Mr. Hans Lermen is also 
named with respect to the program initrd.txt, as a result of the 
pre-existing program parts “initrd” of Mr. Almesberger and “bzImage” of 
Mr. Lermen having been connected.

Plaintiff asserts that the data storage unit distributed by Defendant 
contains firmware that also contains the programs “msdosfs”, initrd” and 
“mtd”.

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Plaintiff claims that the re-engineering took 4 hours. Plaintiff is of the 
opinion that he can for this matter claim 140 EUR per hour, i.e. an 
aggregate amount of 649.60 EUR gross.

Plaintiff asks the Court to:

  1. Order Defendant to pay to Plaintiff 3,188.44 EUR plus interest on 
  this amount of 5 percentage points above the base interest rate since 
  February 25, 2006; regarding the amount of 141.34 EUR, payment shall 
  be made in exchange for the transfer of ownership of the data storage 
  device “[…] Wireless G Network Media Storage DSM-G6000” which is 
  owned by Plaintiff.

  2. Order Defendant to disclose to Plaintiff how many items of the 
  data storage unit “[…] Wireless G Network media Storage DSM-G600” 
  Defendant has acquired, the number of items of this data storage unit 
  Defendant has sold, the identity of the commercial purchasers of the 
  device, and from whom Defendant has acquired the data storage unit.

Defendant asks the Court to:

  Dismiss the case.


Defendant asserts that the Plaintiff has no right of action as Mr. 
Almesberger and Mr. Woodhouse are only co-authors, and Section 8, Para. 
2, Subpara. 3 of the German Copyright Act (UrhG) is therefore not 
applicable since Plaintiff only relies on derived rights. Defendant also 
argues that the claims based on negotiorum gestio and for damages and 
the right to disclosure do not enjoy the privilege afforded by Section 8, 
Para. 2 Subpara. 3 of the German Copyright Act (UrhG) in the first place.

Defendant further argues that the GPL is invalid due to violations of 
Art. 81 of the Treaty establishing the European Community and Section 1 
of the German Antitrust Act (GWB) as it prejudices trade between Member 
States and leads to a restriction on competition. In addition, Defendant 
asserts that the conditions of the GPL do not apply because of the 
principle of exhaustion.

Moreover, Defendant alleges that by means of the so-called re-engineering, 
which in the opinion of Defendant comes close to an illicit decompilation, 
Plaintiff has gained information that must be excluded from this case
because it has been improperly obtained. Defendant argues that Plaintiff, 
in any event, cannot claim for reimbursement of cost allegedly accrued as 
a result of such illegal interference.

Inasmuch as certain facts and opinions are not included herein, reference 
is made to the written statements exchanged between the parties as well as 
to the Annexes hereto that have been submitted to the Court.

Rationale for the Decision

The action [brought by Plaintiff] is admissible and justified in almost 
all respects.

Plaintiff can demand that Defendant reimburse him for the costs of the 
formal cease-and-desist letter of February 1, 2006, of the test purchase, 
as well as for the re-engineering pursuant to Section 683, 670 of the 
German Civil Code (BGB) on the basis of a justified negotiorum gestio 
claim.

Sending the cease-and-desist letter was justified as Plaintiff is 
entitled to make the claims asserted therein. By distributing the data 
storage unit, in the firmware of which the programs mtd, initrd and 
msdosfs are included, without complying with the provisions of the GPL, 
Defendant violated the copyrights in the programs, as a result of which 
Plaintiff, who is entitled to exercise the copyrights, could assert a 
claim to cease-and-desist against Defendant (Section 97 of the German 
Copyright Act (UrhG)).

Plaintiff has standing to bring an action since he was granted the 
exclusive rights of use in the programs mtd, initrd and msdosfs by the 
authors.

In regard to the program msdosfs, Mr. Almesberger is the author. The 
presumption of authorship (Section 10 of the German Copyright Act (UrhG)) 
applies, because he – as can be seen from the printout (Annex K 6) – is 

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named in the source code of the software and is therefore designated as 
author in the usual fashion. In regard to the program mtd, Mr. Woodhouse 
is designated as author in the source code, the printout of which has 
been submitted as Annex K 10. As a result, the presumption of authorship 
applies to him as well. Defendant initially denied that the printouts 
submitted [by Plaintiff] are really the original printouts of the code; 
he argues that the pages [with the names of Messrs. Almesberger and 
Woodhouse] could very easily have been typed [after the fact] in the 
program “Word”. Defendant has not countered the assertions of Plaintiff 
in a substantial manner, however, following submission by Plaintiff of a 
comparison of the original code programmed by Messrs. Almesberger and 
Woodhouse, respectively, and the source code used by Defendant. 

As a result, Defendant has not proven that contrary to the presumption 
(as provided in Section 10 of the German Copyright Act (UrhG)), Messrs. 
Woodhouse and Almesberger are in fact not the exclusive authors of both 
programs.

Initially, Defendant asserted that Messrs. Woodhouse and Almesberger are 
merely to be regarded as joint authors and that Plaintiff should have 
alleged that the software was produced in integral parts programmed by
both of them. In response, Plaintiff substantiated his allegations by 
explaining that Messrs. Woodhouse and Almesberger each performed the 
initial programming, respectively, and that later only modifications by 
third parties within the meaning of Sections 3, 23 of the German Copyright 
Act (UrhG) took place. Defendant has not countered this explanation in its 
written statement of August 16, 2006, which was allowed by the Court. 
Inasmuch as Defendant points out with respect to the program msdosfs that 
Mr. Almesberger, according to the submitted printout of the Internet page 
www.almesberger.de (Annex B2), declares that he no longer works on the 
program and that code has been added to [the existing version of the 
program] to a great extent by third parties, Defendant has not contradicted 
the allegations of Plaintiff that the initial programming was carried out 
by Mr. Almesberger and that later modifications were contributed by third 
parties.

This is also the case with respect to the program mtd and the reference 
made by Defendant in the written statement submitted after the hearing to 
the description of Mr. Woodhouse’s activities on the Internet page about 
that program (Annex B3). Based precisely on the description on that 
Internet page, it follows that Mr. Woodhouse carried out the initial 
programming (“he started MTD from scratch…”). In particular, it cannot be
concluded from either Defendant’s allegations or the printouts submitted 
that either program is an integrative creation of Mr. Almesberger and 
others, or Mr. Woodhouse and others, respectively, generated conjointly by
the deliberate co-operation of the individuals involved. In particular, 
where several authors have participated in creating a work and have not 
made their contributions at the same time but instead have made them
successively, the possibility of joint authorship is not excluded, but 
the presumption is that each individual involved has rendered his/her 
contribution in subordination to a common overall idea (BGH, GRUR 2005, S.
860, 862 – Flash 2000). Such subordination to the common overall idea has 
not been shown by Defendant. As to Defendant’s reference that Plaintiff 
himself referrers to a “core-team” in his article on Wikipedia (cf. 
printout Annex B4), this does not prove joint authorship in the programs 
in question because Plaintiff has undisputedly not contributed to them.

Moreover, Defendant on whom the burden of proof lies in respect of 
rebutting the presumption of authorship has not offered relevant evidence.

With respect of the program initrd, Mr. Almesberger is to be regarded as 
author as well.

However, the presumption of authorship, Section 10 of the German Copyright 
Act (UrhG), does not militate in favour of Mr. Almesberger being sole 
author. For on the submitted printout “initrd.txt” (Annex B8) Hans Lermen 
is designated as author alongside Mr. Almesberger. Where multiple persons 
are designated as authors it is presumed that these persons have acted as 
joint authors (Dreier/Schulze, UrhG, 2nd edition, Munich 2006, § 10, Rz. 
24). In this respect Plaintiff has asserted that the designation of both 
individuals is due to the fact that Mr. Almesberger developed the software 
component “initrd” on his own, whereas Mr. Lermen developed a software 
component “zlmage”. Both components, that can be used separately, were 
then connected with the effect that the connected components are regarded 
as a connected work pursuant to Section 9 of the German Copyright Act (UrhG). 
This scenario under which the separately useable software component “initrd” 
was created by Mr. Almesberger acting alone has not been substantially 
countered by Defendant. Defendant has only alleged that, as displayed in 
the submitted printout of the website (Annex B2), Mr. Almesberger himself 
no longer asserts that he is actively involved with the computer program 
“initrd”. The fact that Mr. Almesberger currently no longer actively 
modifies the program does not change anything with respect to the [original] 
authorship of this component.

The computer programs msdosfs, mtd and initrd are protected by copyright 
law since they are the result of a sufficiently individual, intellectual 
creation of their authors. As shown by the source code (cf. Annexes K6 and
K10 as well as Annex K20), the three programs are complex computer 
programs. Based on this, a factual

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presumption arises in favour of there being sufficient originality in the 
program design to merit copyright protection. In the face of this 
presumption, it is therefore the burden of Defendant to show that the 
programs are instead the result of programming efforts of only trivial 
quality or merely adaptations of the programming results of another 
programmer (BGH GRUR 2005, 860, 861 – Fash 2000). Defendant has not done 
this.

As Mr. Almesberger and Mr. Woodhouse are citizens of other member states 
of the European Union, they enjoy copyright protection for their works 
(Section 120, Subsection 2, No. 2 of the German Copyright Act (UrhG)).

Since Mr. Almesberger and Mr. Woodhouse granted to Plaintiff in the 
contracts submitted to the court (Annex K5, Annex K7, and Annex K9) the 
exclusive rights to copy and to distribute the software as well as to 
make it available to the public and also the right to allow third parties 
to modify and supplement the software, Plaintiff has a right of action.

It was possible for Mr. Almesberger and Mr. Woodhouse to validly grant 
an exclusive right of use to Plaintiff even though rights of use had 
been granted to third parties under to the GPL prior to the grant of 
rights to Plaintiff, since the GPL only grants non-exclusive rights of 
use. It follows from Section 33 of the German Copyright Act (UrhG) that 
exclusive rights of use may be granted that are restricted by 
non-exclusive rights of use granted before, just as the authors of the 
programs could still grant non-exclusive rights of use according to the 
GPL after having granted exclusive rights of use to Plaintiff. This 
follows from Section 4, Subsection 2, of the agreements the authors 
entered into with Plaintiff, under which Plaintiff grants back to the 
authors additional non-exclusive and transferable rights of use as 
necessary for the authors to further license the programs.

The firmware of the data storage unit includes the programs msdosfs, 
initrd and mtd. Defendant initially alleged that as only a distributor 
[of the data storage unit], Defendant had no knowledge of the code 
embedded in the data storage unit itself. Plaintiff then submitted a 
comparison of the original source code programmed by Mr. Almesberger 
and Mr. Woodhouse and the source code used by Defendant, specifying in
detail which of the code strings contained in both of the source codes 
have the highest possible degree of likelihood of originating from the 
source code of “mtd”, “initrd” or “msdosfs.” Defendant has not contested 
this evidence with any substance, and has only claimed that Plaintiff 
has not proven that the code is in fact actually identical but only 
provided assertions that the code may be identical. Contrary to the 
claims of Defendant, however, Plaintiff has indeed sufficiently 
substantiated its assertions of copyright infringement. In general, the 
fact that there are code strings which with utmost likelihood originate 
from a particular source code leads to the conclusion that such source 
code has in fact been used. Defendant has not offered any other 
explanation for the code strings that have been individually enumerated 
by Plaintiff and which undisputedly point to the usage of that source 
code by Defendant. Since Defendant itself distributed the data storage 
unit with that firmware, it cannot claim to have no knowledge thereof 
and to have not received any such information from its parent company.

Plaintiff’s copyright claim may also be based on the code strings 
identified by Plaintiff. Contrary to Defendant’s claims, this evidence 
is not excluded.

To identify the strings which with the utmost likelihood originate 
from the source codes of the three programs, Plaintiff downloaded the 
firmware from the Defendant’s website, unpacked it, and proceeded as 
specified in Plaintiff’s statement of July 20, 2006, page 3. This 
procedure does not constitute an illegal decompilation prohibited under 
Section 69 e of the German Copyright Act (UrhG).

Regarding the claims of Defendant that this pleading is irrelevant since 
the Internet page in question was only uploaded by Defendant because of 
Plaintiff’s cease and desist letter to Defendant and can therefore not 
result in evidence relating to the code used in the firmware, such 
argument is not successful. Firstly, Defendant has failed to contest 
that the code published after Plaintiff’s cease and desist letter is 
indeed the code of the data storage unit. Secondly, the pre-trial letter 
of February 9, 2006, submitted by Defendant (Annex K13) shows that 
Defendant itself states towards Plaintiff that the source code uploaded 
onto the ftp-server is the source code of the relevant firmware. 
Defendant, for example, has also neither alleged that the source code
uploaded onto the server was been given to her by Plaintiff nor explained 
where the code originates from.

Defendant was not entitled to copy, distribute or modify the three 
software programs.

The GPL applies to the legal relationship between the authors and 
Defendant. The three software programs are undisputedly licensed only 
under the terms of the GPL. In the case of free software it is to be 
assumed that the copyright holder by putting the program under the GPL 
makes an offer to a determinable or definite circle of people and that 
this offer is accepted by users [of the software] through an act that 
requires consent

Page 6

under copyright law; in this respect, it can be assumed that the 
copyright holder enters into this legal relationship without receiving 
an actual declaration of acceptance [from the users] (Section 151 of the 
German Civil Code (BGB)).

In addition, if the GPL were not sufficient to form a legal relationship 
with Plaintiff, Defendant would not have any right to copy, distribute 
or modify the three programs, such that a copyright infringement by the 
Defendant would have taken place. In particular, the conditions of the 
GPL can in no case be interpreted to contain a waiver of legal positions 
afforded by copyright law. The GPL precisely stipulates that the freedom 
to use, modify and distribute the corresponding software initially 
afforded by way of a grant of a non-exclusive license to everyone is 
automatically terminated upon a violation of the GPL (cf. Dreier/Schulze, 
§ 69a, Rz.11)

The conditions of the license granted under the GPL must be regarded as 
standard terms and conditions that are subject to Sections 305 et seq. of 
the German Civil Code (BGB).

Since the conditions of the license granted by the GPL are easily 
available on the Internet, they were without a doubt incorporated into 
the contractual relationship between the authors and Defendant (Section 
305, Subsection 2, No.2 of the German Civil Code (BGB)).

Pursuant to Sec. 4 of the GPL the rights under the GPL are terminated 
and revert to the author if the user violates the obligations set forth 
in Sec. 2 of the GPL. In particular, these obligations provide that the 
user has to publish a disclaimer of warranty on each copy [of the program], 
make reference to the GPL, accompany the program with the license text, 
and provide the source code of the program. These rules do not unduly
discriminate the user and are therefore not invalid pursuant to Section 
307, Subsection 2 No. 1 of the German Civil Code (BGB).

The obligations [under the GPL] are not a valid limitation of the right 
to use under Section 31, Subsection 1, Sentence 2 of the German Copyright 
Act (UrhG), since the possibility to split up into different forms of use
requires a sufficiently distinguishable, economically-technically uniform 
and autonomous form of use from the point of view of the relevant public 
(BGH GRUR 2001, p. 153, 154 – OEM Version). Section 2 of the GPL does not 
fulfil this requirement.

The regulations of the GPL must be understood to provide that the grant 
of the non-exclusive right of use under the GPL is subject to the 
condition subsequent (Section 158 of the German Civil Code (BGB)) that 
the licensee must not fail to comply with the terms of the agreement. 
Upon occurrence of the condition the license [granted under the GPL] is 
terminated.

This arrangement is not invalid pursuant to Section 307, Subsection 2, 
No. 1 of the German Civil Code (BGB) and does not, in particular, 
circumvent Section 31 of the German Copyright Act (UrhG). Section 31 of 
the German Copyright Act (UrhG), which provides for the possibility to 
split up the right in rem to use but at the same time restricts such 
possibility, establishes a balance between the interests of the author 
to, in the most thorough and complete way, exploit his works, on the one 
hand, and the public interest in the protection of its legal relations, 
on the other hand, i.e. to be able to recognize and clearly distinguish 
which different forms of use exist in order to acquire corresponding 
separate rights of use or for the purpose of complying with those
rights as such (Dreier/Schulze, l.c., § 31, Rz. 9). Hence, a provision 
must be regarded as circumventing Section 31 of the German Copyright Act 
(UrhG) if it severely affects the marketability of the rights or the 
physical copies of the work. The GPL, however, only provides that the 
very user who does not comply with the conditions of the GPL loses his 
license. Sec. 4, Sentence 3 of the GPL explicitly stipulates that 
licenses [granted under the GPL] to parties who received copies or 
rights from someone whose license has been terminated according to Sec. 
4, Sentence 1, will not be terminated so long as these parties continue 
to observe and comply with the terms of the GPL. As far as the 
marketability of a physical copy is concerned, such marketability is 
not inadequately limited, either. The person who purchases such a copy 
from someone who at the time of making the copy was not entitled to do 
so for having had his/her license terminated can accept the GPL and 
acquire the license necessary from the author at any time (cf. LG 
München I MMR 2004, 693, 695).

Since Defendant violated the obligations provided for in Sec. 2 of the 
GPL, the condition subsequent has occurred with the result that 
Defendant has lost its license.

Defendant cannot invoke a claim of exhaustion of the right to 
distribute (Section 69 c, No. 3, Sentence 2 of the German Copyright Act 
(UrhG)), even though the three programs are available to the public on 
the Internet.

The principle of exhaustion only applies to the individual physical data 
carrier onto which the software is copied during the downloading process. 
With respect to the right to copy, no exhaustion takes place; thus,

Page 7

Defendant is not entitled pursuant to Section 69 c, No. 3, Sentence 2 of 
the German Copyright Act (UrhG) to [freely] copy the software onto the 
individual data storage units.

With respect to the data storage units already sold by Defendant, no 
exhaustion of the right to distribute takes place, since those data 
storage units were not put into circulation by sale with the consent of 
the authors as the sale of the data storage units did not comply with 
the GPL. However, purchasers can, as described above, at any time 
acquire the necessary rights of use [the three programs] directly from 
the author by recognising the GPL.

It need not be decided whether, as Defendant argues, the provisions of 
the GPL violate Article 81 EC and Section 1 of the German Antitrust Act 
(GWB), in particular the prohibition against price fixing and of 
predetermining the conditions of secondary contracts in the first 
contract. This would, according to Section 139 of the German Civil Code 
(BGB), result in the invalidity of the entire license agreement with the
consequence that Defendant would not have a right of use in the software 
at all, so that Plaintiff could file a copyright infringement claim for 
that reason. If an agreement is partly invalid, the entire transaction 
is invalid pursuant to Section 139 of the German Civil Code (BGB), 
unless it can be assumed that the parties would carry out the 
transaction without the invalid part. This is not the case here. Since 
the parties agreed on the grant of the license being subject to the 
condition subsequent of compliance with the GPL, the possibly invalid
part [of the GPL] (Sec. 2 of the GPL) is inseparably connected to the 
primary obligation, i.e. the grant of the license. In addition, 
invalidity of this part of the GPL would also jeopardize the further 
development of the software and therefore affect the basic principle 
of open source, which is incorporated into the contract by virtue of 
the preamble of the GPL (cf. Annex K11).

Plaintiff would also be entitled to plead invalidity of the entire 
contract and therefore allege that Defendant is lacking any license 
[to the three programs] whatsoever. This case is not one in which 
Plaintiff would be barred from pleading invalidity for reasons of 
good faith and, in particular, because of the objection of improper 
exercise of a right.

It is possible that the principle of good faith in contravened when a 
party who is called upon because of a culpable violation of a 
contractual obligation pleads nullity of such contractual provision 
because another contractual provision is invalid (BGH GRUR 1971, 272, 
273 – Blitzgeräte). This applies especially where there is no 
connection between the invalid clause and the clause that pertains to 
the contractual obligation that has been violated (BGH GRUR 1969, 701, 
702 – Auto-Lok).

That, however, is not the case here. Plaintiff, or the licensors from 
whom Plaintiff derives his right, have not violated any contractual 
obligations themselves. Rather, Defendant, who violated contractual 
obligations, relies on rights granted by contract. Moreover, the 
allegedly invalid clause Sec. 2 of the GPL, that imposes duties on the 
licensee, and the provision of the GPL according to which the licensor 
grants a non-exclusive license to the other party are closely connected 
by the fact that the failure to meet the obligations of Sec. 2 of
the GPL is a condition subsequent for the grant of the license. 
Therefore, Plaintiff would not be not barred from claiming invalidity 
of the entire contract.

Contrary to the Defendant’s opinion, this likewise does also not result 
in the fact that any clauses of the GPL violate antitrust law. The only 
consequence of the invalidity of the entire contract is that Defendant 
is not a licensee [of the programs].

Therefore, Plaintiff can call upon Defendant for reimbursement of the 
costs of the cease-and-desist letter of February 1, 2006. However, 
Plaintiff can only claim reimbursement of a 1.3x the General Fee instead 
of the 1.5x the General Fee claimed in the action, since the matter was 
only of average difficulty. The presumed value of the dispute of 150.000 
EUR is not inappropriate considering the fact that the claim is founded 
in copyright infringements of three software programs. Adding the 
statutory lump sum for expenses, Plaintiff can demand reimbursement of 
2,080.50 EUR.

Likewise, Plaintiff can pursuant to Sections 683, 670 of the German 
Civil Code (BGB) demand reimbursement of the costs for the test purchase 
(141.34 EUR) upon transfer of ownership of purchased data storage unit 
to Defendant (Section 322 of the German Civil Code (BGB)).

Finally, Plaintiff can demand reimbursement of the reengineering costs 
of the data memory unit purchased for testing purposes. The costs 
incurred were costs that Plaintiff could rightly assess as necessary 
costs considering the circumstances, since reengineering was the only 
possible means for him to examine whether the firmware used in the data 
storage unit contained the three software programs. In reengineering, 
Plaintiff also did not infringe Defendant’s copyright, since he did not 
perform a decompilation which would only be permissible under the 
conditions of Section 69e of the German Copyrights Act (UrhG). Plaintiff 
did not 

Page 8

translate the object code back to the source code but only recorded the 
booting process of the data storage unit and examined the result for 
evidence of usage of one of the software programs.

Plaintiff is entitled to the customary remuneration for the time 
invested in the reengineering, since such services are part of 
Plaintiff’s profession as a free programmer (cf. Palandt-Sprau, 65th
edition, München 2006, § 683, Rz. 8). The suggested hourly rate of 
140.00 EUR net has not even been contested as unusual by Defendant. 
Plaintiff could also claim an amount of time spent of four hours. 
Initially, Defendant contested the reengineering costs by pleading lack 
of knowledge. However, after Plaintiff described the way he proceeded 
in a detailed manner in the statement of July 20, 2006, Defendant no 
longer contested the alleged amount of time spent. It would have been 
the burden of Defendant as a company that offers a large variety of
hardware and network components to demonstrate that the amount of 
time spent was not necessary to carry out the reengineering.

The decision on interest is based on Sections 280, 286, 288 of the 
German Civil Code (BGB). Plaintiff is, however, only entitled to the 
payment of interest on account of delay in the amount of 5 percentage 
points above the base rate.

Because of the copyright infringement, Plaintiff also has a right of 
disclosure against Defendant based on copyright infringement pursuant 
to Section 101 a of the German Copyright Act (UrhG).

Defendant bears the full costs of the litigation, since Plaintiff’s 
claims only slightly exceeded the claims granted by the court and only 
lead to a marginal increase in costs (Section 92, Subsection 2, No. 1 
of the German Code of Civil Procedure (ZPO))

The decision on the provisional enforceability follows from Section 709 
of the German Code of Civil Procedure (ZPO).

The setting of the value of the dispute is based on Section 3 of the 
German Code of Civil Procedure (ZPO).

Signatures
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regards,
alexander.