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GPL may be unenforceable under German law (InfoWorld)
InfoWorld reports
on a study that claims that the GPL may be unenforceable under German (or
perhaps EU) law. The main issue seems to be with the warranty
disclaimers. "Regarding such legal principles as liability and
warranty, the GPL clauses have absolutely no legal validity. Under the
license, developers and distributors of open software are not liable for
any problems with their products. The GPL avoids any wording that could
imply liability. Such a license is simply unenforceable under German, or
even European Union law for that matter." As the article notes, the
study was performed for a closed-source lobbying group. (Thanks to Yusuf
Goolamabbas).
(Log in to post comments)
liability Posted Aug 7, 2003 1:24 UTC (Thu) by mmarkov (subscriber, #4978) [Link] His main concern with the GPL isthe no-liability clause. What is then the liability of, say, Microsoft? I have none of their products and have never seen the famous EULA, but I have read many times that they refuse to take any liability and that is quite explicit in their licesnse. Does it follow that Microsoft's
liability Posted Aug 7, 2003 15:38 UTC (Thu) by tjc (subscriber, #137) [Link] His main concern with the GPL is the no-liability clause. What is then the liability of, say, Microsoft?This was my first thought as well. I have none of their products and have never seen the famous EULA, but I have read many times that they refuse to take any liability and that is quite explicit in their licesnse. I have seen the MSFT EULA, and IIRC they have entire paragraphs limiting liability. In fact, I'm not aware of any software license that doesn't contain a clause limiting liability. If this is the sole criteria for saying that the GPL is unenforceable, could we not then infer that most software licenses, both proprietary and free, are also unenforecable?
liability Posted Aug 9, 2003 20:03 UTC (Sat) by coriordan (guest, #7544) [Link] Whether the MS EULA is enforcable or not changes nothing.The issus is whether GPL is enforcable, the anwser is yes. It would be handy if there were governmental departments for confirming the enfocabiltiy of a license. Not a certification that would say "this license will always win court cases", just a stamp to say "this license isn't self-contradicting non-enforcable garbage". (see my next toplevel post for why the GPL isn't non-enforcable) Ciaran O'Riordan
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 2:12 UTC (Thu) by coriordan (guest, #7544) [Link] A quick read of the article shows that the interviewee has no understanding of the GPL, or he is trying to misrepresent it which is probable since his work was commissioned by a proprietary software lobbying group (VSI).This issue was also brought up a month ago and was cleared up. From the GPL, section 11: Ciaran O'Riordan
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 4:58 UTC (Thu) by josh_stern (guest, #4868) [Link] The article, despite being a lengthy interview, just containedtoo little information to understand the legal interpretation he was making. It did sound like he implied that if a software license disclaims liability then it is unenforceable, but it would take someone familiar with German law to tell us if there is a law that says exactly that or if there is some related law that he is interpreting in a particular way. The original interview was very frustrating because it didn't attempt to even casually explore this central point.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 11:16 UTC (Thu) by forthy (guest, #1525) [Link] There are a few things to say:First, a contract that is null and void in one item (would be section 11 in this case, if any) is still valid in all other points under German law. Invalidated items fall back to standard contract law (in Germany, that's the BGB, the civil law book). Second, the GPL clearly restricts the warranty disclaimer to what's allowed under the applicable law. Third, the GPL clearly states that the warranty disclaimer comes *because* the program is shipped free of charge - warranties such as fitness for a particular purpose usually are limited to a refund (before a refund is obligatory, the vendor has three chances to fix the problem; again, that's BGB). If there's no money transferred in one direction, no refund back; it's difficult to exceed damages beyond what you've paid (generally). If you sell GPL'd software (e.g. a Linux distribution), a refund is possible. This rarely is a concern for the author itself. A concern for the author is when there are actual intentional defects (such as virii or worms) in the code, without obvious warnings (e.g. an exploit for a security problem would come with such a warning, because the exploit's purpose is to show how to do harm). You can't disclaime those - if you intent to harm people, you get to pay for the damage.
Wrong info Posted Aug 7, 2003 13:16 UTC (Thu) by jmshh (guest, #8257) [Link] Afaik, the first item gives a wrong answer. By default (i.e., unless otherwise agreed on),any contract that has an invalid section is then invalid as whole. Therefore, nearly any contract under German law specifies that in case of any invalid clause, just this one should be replaced by the standard law and the others should continue to be valid. But what shoud anybody gain from contesting the GPL? The result will only be loss of the additional rights the GPL gives, as then the more restrictive copyright law will apply. #include <standard disclaimer.h> /* IANAL, but had some courses in law */
Wrong info Posted Aug 7, 2003 16:12 UTC (Thu) by josh_stern (guest, #4868) [Link] Thanks guys. The remarks by jmshh seem to hint at the answer tothe riddle of the bad interview. The GPL would apparently be more German law proof if it included
Wrong info Posted Aug 11, 2003 13:09 UTC (Mon) by forthy (guest, #1525) [Link] "what should anybody gain from contesting the GPL?"Nothing. If the GPL is not valid, you are not allowed to copy, distribute, and modify the sources therein. If you can't make legal use of the GPL due to any sort of restrictions implied to you (like patents or other conflicting laws), item 7 applies - which takes away the right to distribute the software. The GPL doesn't contain a general statement as usual in German contracts, but three items are individually protected against being unenforcible as is: item 7 (which deals with patent infringement and other conflicts), and the warranty items 11 and 12 (... "TO THE EXTENT PERMITTED BY APPLICABLE LAW", ... "UNLESS REQUIRED BY APPLICABLE LAW"). So if the questionable items are 11 and 12, the GPL should be German law proof, since even without generall fallback clause, these two items have their individual fallback clause. There are other points in German law that questioned the GPL. The recently renewed copyright contract law includes a statement about fair pay. It has a special exception for free software (material given to everybody free of charge), but if that special exception was missing it would mean that all free software would be impossible in Germany, because even though the author explicitely doesn't want some money for it, you'd have to pay him his fair share. BTW: Since the GEMA and VG Wort collect money for raw media (like CD-Rs) used for legal private copies, "fair pay" could also have meant that these organizations had to give money to the free software developpers in Germany, while the users themselves won't be charged (other than what they are charged anyway when they buy a CD-R). This would have been a step towards RMS' idea of a "software tax".
CD-Rs Posted Aug 14, 2003 15:20 UTC (Thu) by Ross (subscriber, #4065) [Link] We pay those fees in the US as well. Blank digital tapes and CD-Rs paya mandatory RIAA/MPAA tax. Devices which record to those media also pay a tax.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 7:40 UTC (Thu) by MathFox (subscriber, #6104) [Link] I tried to read his full report but got totally lost in his use of the German language. I don't think that's due to German being a foreign language for me, the "Linux usability" report was clear enough. Somewhere in his report he says that the GPL in general is enforcable.Under European Law a "No Warranty" clause is unenforcable and any product should match the "reasonable expectations for fitness of use" that the customer has. Judges take the price paid for the product into account when determining what is reasonable to expect from a product. A 100 euro jeans shouldn't fade within a month, while a 10 euro jeans may. For open source this implies that it should statisfy the basic demands of not being dangerous, virusses and trojans will give you trouble, ordinary bugs don't. The only point that he states that is serious, is that it is unclear who can be held liable for the damage caused by a defect in an Open Source program, when multiple programmers contributed to the project. Up to now, this question is theoretical; but it will be pretty easy to point the finger to the real culprit when an analysis of the sourcecode is done.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 12:24 UTC (Thu) by cross (subscriber, #13601) [Link] As has been pointed out by others, what the GPL actually says is "THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW". So far as I can see, this basically means that you get whatever your jurisdiction decides is the minimum norm for this type of good but the author offers no extra. That's quite different. If you want an "extended warranty" on the product it's up to you to arrange that, which is quite common even for unrelated goods. Toasters and washing machines for example. The extended warranty can in fact be quite lucrative in its own right, to the extent that IIRC there's currently an EU investigation underway into the market for them. An extended warrantly is one of the things that a distributor such as SuSE can bring to the table to add value.
That section dubious in Australian law too... Posted Aug 7, 2003 5:42 UTC (Thu) by goonie (subscriber, #4252) [Link] An IP lawyer whose work is mainly in technology IP gave a most enlightening talk at my university recently.His (off-the-cuff) opinion was that the no-liability clause was unlikely to stand up to Australian law, particularly in the case where the software was sold for profit - at the very least, the vendor would be obliged to provide a refund of the purchase price of the software if it was not fit for its advertised purpose. Whether they could be liable for further damages is unclear. My question, as somebody who did some development on GnuCash some time ago, was "As a volunteer developer who gives the software away, could I also be sued?" His answer was "who knows?" However, don't assume that copyright law as it applies to proprietary software is any clearer, or any less likely to result in horrible legal blowups...he had several concrete examples of those, too.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 7:09 UTC (Thu) by oak (subscriber, #2786) [Link] GPL software is normally used and propagated without signing any contracts, so how the liability would be enforcable in court?
GPL may be unenforceable under German law (InfoWorld) Posted Aug 8, 2003 10:57 UTC (Fri) by ernest (subscriber, #2355) [Link] You accepted the contract by openning the package and using the software.There is no need to sign. Contrary to many licences, the GPL is generally available, so you can read it before you open the package ;^) Ernest.
copying and distributing imply GPL agreement Posted Aug 9, 2003 20:12 UTC (Sat) by coriordan (guest, #7544) [Link] > You accepted the contract by openning the> package and using the software I don't think that's correct. There is no natural rights to copying something, in the absense of a License, you can't make or distribute copies. i.e. by distributing GPL'd software, you implicitly agree to the GPL since nothing else gives you permission to do so. Ciaran O'Riordan
GPL may be unenforceable under German law (InfoWorld) Posted Aug 11, 2003 3:34 UTC (Mon) by bignose (subscriber, #40) [Link] > GPL software is normally used and propagated without signing any contractsThat's because it uses copyright law, not contract law. In most countries (including Germany) copyright, by default, reserves most rights to the copyright holder. To do anything normally reserved to the copyright holder, the holder must license you to do those actions explicitly -- through a copyright license. The recipient of the license doesn't need to do anything for the license to be valid -- but without that license, they don't have the rights it grants. By contrast, a contract binds the parties to relinquish rights they would normally have (e.g. to talk about the work they are doing, to work for whomever they please, to not send money to another party, etc.) and must therefore be agreed to by *all* its parties.
Spindler made contrary points in another interview Posted Aug 7, 2003 7:43 UTC (Thu) by dd9jn (subscriber, #4459) [Link] The German LinuxMagazin (9/2003) has an good article by Carsten Schulz on the VSI study. In a sidebar Spindler takles position to the critic on his study.His main complaint is that most people didn't read the study well enough and thus came to false conclusions. Some points he made are in contradiction to what he said in the Infoworld interview. For example he does not say the liability clause is unenforceable but it depends on the way of distribution; i.e whether the software was sold as a product or simply downloaded. For the latter case the German law on donations will be applied which reduces liablity basically to acts of gross negligence. In his conclusion he remarks that he never said that the "world of proprietary software is without legal problems" and it would indeed be possible to carry on his thoughts on the GPL to proprietary software. I don't understand why he is still giving interviews which are more in favor of the VSI (the lobby groub led by a former Mircosoft-Germany CEO) and spreading FUD. I can't remember whether it was mentioned here: The VSI removed the study from their webpage but started to write letters to companies and governmental institutions advertising just this study to keep them from using Free Software.
Spindler made contrary points in another interview Posted Aug 7, 2003 8:17 UTC (Thu) by dd9jn (subscriber, #4459) [Link] My remark on the removal of the study was misleading. Christian Selig has this timeline:July 1: Published (studie_final.pdf) July 3 and 4: Reponses by FSE, LiVE and ifrOSS July 7: Not anymore linked from www.vsi.de July 16: Revised version online (studie_final_safe.pdf)
Spindler made contrary points in another interview Posted Aug 7, 2003 13:53 UTC (Thu) by ccchips (guest, #3222) [Link] "In his conclusion he remarks that he never said that the "world of proprietary software is without legal problems" and it would indeed be possible to carry on his thoughts on the GPL to proprietary software."Then, can we expect the publishers to post this clarification in letters as big as the ones they used for the sensational version of the article?
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 9:34 UTC (Thu) by Chemtux (guest, #107) [Link] I use Free Software all the time and I have also thought about thelanguage...I live in the Netherlands and to the best of my knowledge every contract or license must be written in Dutch. Does someone else have experiences with this problem?
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 12:18 UTC (Thu) by mumspter (guest, #13766) [Link] Hi!We have the same problems here, in Russia. All contracts (even implicitly signed by concludent actions) assumed to be in state language, i.e. Russian though we could avoid these problems just by adding the word "worldwide" to the text of GPL. In this case adequate Russian translation permits usage of English. Yet another problem is absense of translataion certificate from notary.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 13:48 UTC (Thu) by MathFox (subscriber, #6104) [Link] That would also mean that the MS EULA is unenforcable in the Netherlands.I don't know of any requirement that contracts should be written in Dutch, but if you can provide me with an appropriate citation of Dutch law (wetten.overheid.nl) that will convince me. The government has the obligation to write its official documents in Dutch (provide an official translation in Frisian sometimes) and accept documents in Dutch (Frisian).
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 18:02 UTC (Thu) by jdthood (guest, #4157) [Link] > That would also mean that the MS EULA is unenforcable in the Netherlands.Not if you have the Dutch language version of the product. The FSF provides translations of the GPL but these are
GPL may be unenforceable under German law (InfoWorld) Posted Aug 14, 2003 7:28 UTC (Thu) by dmantione (guest, #4640) [Link] No, official documents do not need to be translated in Frisian, because everyone in Friesland is expected to be able to understand Dutch. Fries is a minority language and therefore is not in the same position as the official language of the Netherlands.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 14, 2003 7:23 UTC (Thu) by dmantione (guest, #4640) [Link] If you need to be able to understand a foreign language in order to be able to use a certain piece of software, then Dutch law allows licenses in that language.So, a program like GCC, which is only available in English and requires understanding of error messages is ok to have an English license. For programs like KDE and OpenOffice, which talk to the user in his/her own language, you cannot reasonably expect your user to understand English, and you cannot blame him for being unable to comply to the license. However, if you do not understand the GPL, by default you are not allowed to "multiply or publish". So, by copying GPL software you indicate you understood something of the license and it might be possible to enforce it. The conclusion is that it might be a good idea to ship some GPL translations with your software.
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 10:36 UTC (Thu) by cpm (subscriber, #3554) [Link] And this makes the GPL different from any other software license (Including the real sponsor of the FUD, Microsoft) in which way exactly?
GPL may be unenforceable under German law (InfoWorld) Posted Aug 7, 2003 13:47 UTC (Thu) by ccchips (guest, #3222) [Link] Isn't it amazing what a little money, an Internet connection, and a lack of morals can do?I have seen enough of this crap by now that, if I ever became like the kind of people who write this stuff, I'd be rich. It's easy to mislead fools. You can make a great deal of money at it. Maybe there are people in the Linux community who will contact unscrupulous media idiots and tell them that Bill Gates if from the planet Mongo?
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