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Munich's Migration to Linux Raises Issues

By Phil Albert
Jul 27, 2004 6:00 AM PT

There is a line Jack Kerouac used to describe the independent, nonconformist nature of the Beat movement during the 1950s. He said, "Imagine explaining to 10,000 raving Tokyo snake dancers in the street that you are looking for peace but you won't join the parade."

Munich's Migration to Linux Raises Issues

That may not be exactly the explanation that Microsoft CEO Steve Ballmer got when he personally flew to Munich to meet with city officials, but he was probably as mystified as the snake dancers when Munich officials said that in spite of the huge discounts he was offering, they had decided not to join the parade.

All over Europe, cities seem to be embracing open source. On July 1, the Counsel of Munich, Germany's third largest city, marked the official date for the migration of the government's 14,000 desktop and notebook computers to Linux. The process will take until 2009 and cost an estimated 35 million Euros (US$42.505 million). More cities in Germany and elsewhere in the European Union are expected to follow.

Given this growing interest in open source in both the private and public sectors in Germany, including the federal government, it looked like Linux was beginning to win the battle for the hearts and wallets of German software users -- at least until Gerald Spindler fired what amounted to a shot across the bow.

GPL Enforceable in Germany?

Spindler is a professor of law at the Gerog-August University in Gottingen, Germany, and as vice chairman of the German Society of Law and Information Science, he is a highly regarded German legal authority. When he was asked by a German software association to study the legal implications of open-source software, he came up with a 123-page report that reached several interesting conclusions.

One of those conclusions may give pause to some people running or considering running open-source software on their computers. He suggested that the GPL has no legal validity in Germany.

Spindler's report objected to the "no warranty" provision under the GPL. His view was that a clause where developers and distributors of open-source software are not liable for any problems with their products "is simply unenforceable under German, or even European law for that matter."

Although the software association admittedly lobbies on behalf of proprietary software vendors who tend to be critical of the open-source movement, Spindler says he is not employed by the group and that they did not influence his conclusions.

Relevancy Question

Whether German law is relevant is a good question, and the answer is probably yes, based on conflict-of-law principles. Unlike proprietary software contracts, the GPL is silent on the issue of governing law, merely referring to "applicable law."

Some legal commentators (Axel Metzger and Till Jaeger) have argued that, under international copyright and conflict-of-law principles, if the open-source software is downloaded in Germany from the Internet or acquired from a data carrier and the user modifies the software, then German law applies. In this case, one must interpret the validity of the GPL in accordance with Germany copyright law.

There are possible objections to the GPL under German Law:

  • Moral Rights Objections. In Europe, especially in Germany, the concept of "moral rights" has great importance. Under the Berne Convention, "independently of the author's economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which shall be prejudicial to his honor or reputation."

    Under Section 2 of the GPL, anyone can modify your code in any way as long as they pass on the source code and meet the other restrictions. It has been argued that the "moral rights" of the author to protect the integrity of their works under German law is not prohibited by the GPL. If so, then there may be a problem if the author wishes to prohibit any modification on the ground that it violates his "moral rights."

    On the other hand, the GPL is quite clever in requiring that those who redistribute modifications have to provide notice of the changes. This could diminish or eliminate any concerns of the original author over their moral rights, since the modifications would not be associated with the original author and therefore not prejudicial to their honor or reputation.

  • Exclusion of Warranty and Liability. It has been pointed out that Section 11 and 12 of the GPL regarding the exclusion of warranty and liability may be unenforceable under the Standard Business Conditions Act of Germany, since an exclusion of liability for damage resulting from gross negligence is invalid. What about the fact that Section 11 of the GPL provides that "there is no warranty for the program, to the extent allowed by law?"

    Legal experts have argued that under German law, even the use of such language does not help make it less objectionable under German law. I don't think GPL users have much to worry about, unless they are so sloppy that they include viruses in their code (and the reader of the source code doesn't notice) or they out and out copied someone else's proprietary code. In either case, the original author is liable for something, whether such code is distributed using the GPL or any other license.

    Preliminary Injunction

    The question of whether all of the terms of the GPL would be held up under German law is certainly open for debate. As recently as April 2004, the Munich district court granted a preliminary injunction against Sitecom Germany to enforce the GPL. Sitecom's product is a wireless access router based on software licensed under the GNU-GPL.

    It was developed by Netfilter, a company providing security software for Linux firewalls. The court order reportedly stated that Sitecom did not fulfill the obligations imposed by the GNU-GPL, including not making any source code offering or including any GPL terms with their products.

    After Sitecom refused to cease and desist despite warning notices, NetFilter applied for a preliminary injunction, banning Sitecom from distributing its product unless Sitecom applies all obligations of the GPL.

    So What Now?

    While Linux supporters are hailing this case as "the first case in which a judicial decision has been decreed on the applicability and validity of the GNU-GPL," I suggest that they wait before popping the champagne. This judgment is, after all, only a preliminary injunction that is meant to preserve the status quo until final judgment is made.

    As Spindler points out, the legal debate is just beginning. The idea of the open-source license is still a relatively new concept in the German legal system. Sorting out these conflicting legal positions is risky business, and the arguments made by legal commentators that the GPL is unenforceable should not be ignored.

    If they are right, Spindler suggests that one solution may be to produce a German language version of the GPL that takes in account both EU and German law. Until then, he said he believes that governments, businesses and even individual users may find themselves more liable than they expected.

    Joining the Parade

    With an estimated 500 German government agencies already using open source, there is no question that Linux will continue to grow in popularity in Europe. As it does, I expect to see many more legal issues that need resolution concerning how the individual copyright laws of each country may or may not apply to the GPL.

    In the meantime, perhaps Linux users should start their own parade, dancing up a storm until all the legal issues converge on some consensus on both sides.

    Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.

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