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 thestreet that you are looking for peace but you won’t join the parade.”
That may not be exactly the explanation that Microsoft CEO Steve Ballmergot when he personally flew to Munich to meet with city officials, buthe was probably as mystified as the snake dancers when Munich officials said thatin spite of the huge discounts he was offering, they had decided not to jointhe 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 andpublic sectors in Germany, including the federal government, itlooked like Linux was beginning to win the battle for the hearts andwallets of German software users — at least until Gerald Spindler firedwhat amounted to a shot across the bow.
GPL Enforceable in Germany?
Spindler is a professor of law at the Gerog-August University inGottingen, Germany, and as vice chairman of the German Society of Lawand 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.
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, theGPL 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-lawprinciples, if the open-source software is downloaded in Germany fromthe Internet or acquired from a data carrier and the user modifies thesoftware, then German law applies. In this case, one must interpret thevalidity of the GPL in accordance with Germany copyright law.
There are possible objections to the GPL under German Law:
UnderSection 2 of the GPL, anyone can modify your code in any way as long asthey pass on the source code and meet the other restrictions. It hasbeen 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, thenthere may be a problem if the author wishes to prohibit any modificationon the ground that it violates his “moral rights.”
On the other hand,the GPL is quite clever in requiring that those who redistributemodifications have to provide notice of the changes. This could diminishor eliminate any concerns of the original author over their moralrights, since the modifications would not be associated with theoriginal author and therefore not prejudicial to their honor orreputation.
Legal experts have argued that under Germanlaw, even the use of such language does not help make it lessobjectionable under German law. I don’t think GPL users have much toworry about, unless they are so sloppy that they include viruses in theircode (and the reader of the source code doesn’t notice) or they out andout copied someone else’s proprietary code. In either case, the originalauthor is liable for something, whether such code is distributed usingthe GPL or any other license.
The question of whether all of the terms of the GPL would be held upunder German law is certainly open for debate. As recently as April2004, the Munich district court granted a preliminary injunction againstSitecom Germany to enforce the GPL. Sitecom’s product is a wirelessaccess router based on software licensed under the GNU-GPL.
It wasdeveloped by Netfilter, a company providing security software for Linuxfirewalls. The court order reportedly stated that Sitecom did notfulfill the obligations imposed by the GNU-GPL, including not making anysource 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 fromdistributing its product unless Sitecom applies all obligations of theGPL.
So What Now?
While Linux supporters are hailing this case as “the first case in whicha judicial decision has been decreed on the applicability and validityof the GNU-GPL,” I suggest that they wait before popping the champagne.This judgment is, after all, only a preliminary injunction that ismeant to preserve the status quo until final judgment is made.
As Spindler points out, the legal debate is just beginning. The idea ofthe open-source license is still a relatively new concept in the Germanlegal system. Sorting out these conflicting legal positions is riskybusiness, and the arguments made by legal commentators that the GPL isunenforceable should not be ignored.
If they are right, Spindler suggests that one solution may be to producea German language version of the GPL that takes in account both EU andGerman law. Until then, he said he believes that governments, businesses andeven individual users may find themselves more liable than they expected.
Joining the Parade
With an estimated 500 German government agencies already using opensource, there is no question that Linux will continue to grow inpopularity in Europe. As it does, I expect to see many more legal issuesthat need resolution concerning how the individual copyright laws ofeach 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 consensuson 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.