Hi all,
today I stumbled across a software project called ILIAS, available from
http://www.ilias.uni-koeln.de/ios/index-e.html
The software of this project is released under the GNU GPL but before you can download a copy you additionaly have to agree to so called 'Allgemeine Geschäftsbedingungen (AGB)' which on the project site is translated as 'general terms of business'. In this AGBs there are three terms that make me wonder if they are compatible with the GNU GPL or if they possible make the software non free.
1. Under '2. Vertragsgegenstand' there is a bold paragraph which goes like this (in German):
"Sofern der Lizenznehmer die Software bearbeitet und diese Bearbeitung Dritten zugänglich macht, ist er verpflichtet, dem Lizenzgeber auch eine Kopie der Bearbeitung kostenlos zukommen zu lassen, oder, sofern die Bearbeitung öffentlich und kostenlos zugänglich ist, dem Lizenzgeber die Quelle mitzuteilen."
I try to translate this, but please, all you other guys from Germay, correct me, if I'm writing bulsh*t :-)
"If the licensee modifies the software and makes this modification available to third parties, he is obligated to make available a copy of the modification to the licenser at no cost, or, if if the modification is available publicly and at no cost, to inform the licenser about the source."
Under http://www.gnu.org/philosophy/license-list.html I searched for a license which has a similar obligation and I think that maybe the 'Open Public License' may hold as an example. According to the FSF the 'Open Public License' is "not a free software license, because it requires sending every published modified version to a specific initial developer."
Now am I right in thinking that the addition of the AGBs to the GNU GPL as quoted above makes the sum of GNU GPL and AGBs a non free software license?
2. Under '3. Sorgfaltspflicht des Lizenznehmers' in the AGBs it is said that:
"Der Lizenznehmer ist verpflichtet, sein Passwort für den Zugang des Downloadbereiches sorgfältig aufzubewahren und Dritten nicht zugänglich zu machen. Der Lizenznehmer haftet für alle Schäden, die aus der Verletzung dieser Sorgfaltspflich entstehen."
Again, I try to translate:
"The licensee is obligated to carefully keep his password for the download area [of the web site] and not to disclose it to third parties. The licensee is liable for any damage which rise from a violation of this obligation of carefulnes."
I don't see any license problem with this sentence but wonder, what it's purpose may be. Of course it's possible to missuse access to the download area and go wild in it (if the server is badly configured). But the danger of this seems to be pretty low, even more because I don't see any difference in playing with the public available pages of the site or with the protected pages. If I can break the server using the pages in the protected download area I surely can break it using the publicly available pages.
So why this sentence? What if I download the software and immediatly put it on my own web site for download without the need for registration? Even though I don't disclose my password, I make available all the additional information I got from registering at the original web site. The licenser could interpred this as a violation of the obligation quoted above.
3. Under '5. Schutzrechte Dritter' the licenser states that according to his knowledge the software does not violate the rights of any third parties (in Germany). To keep it that way the licensse is obligated to (and again, my poor translation):
"not use the software for himself or under order of third parties for the purpose of searching for violation of third party rights",
"immediatly inform the licenser if third parties claim any rights",
"if the licensee has the imperssion that the software violates third party rights he is obligated to immediatly inform the licenser in written form about this violation including a detailed description of the act of violation. It is disallowed to the licensee to inform any other natural of legal entities without written permission of the licenser (about the violation of third party rights)."
"If any of the about obligations ('Nebenpflichten') is violated the licensee takes the obligation to pay compensation to the licenser for all damage done by the violation."
And on and on...
As stated above under 1. I think these additional conditions make the software non free software.
I should add that all the AGBs I quoted above are presented as prospective conditions which at the moment undergo a legal validation.
If you could pleas share your options about how to judge these additions and if they are incompatible with the GNU GPL or even make the sum of these conditions and the GNU GPL a non free software license, I'd be grateful. I'd hate to step on the toes of the guys who made the software without any reason :-)
Regards Lutz
Lutz Horn wrote:
Hi all,
today I stumbled across a software project called ILIAS, available from
http://www.ilias.uni-koeln.de/ios/index-e.htmlThe software of this project is released under the GNU GPL but before you can download a copy you additionaly have to agree to so called 'Allgemeine Geschäftsbedingungen (AGB)' which on the project site is translated as 'general terms of business'. In this AGBs there are three terms that make me wonder if they are compatible with the GNU GPL or if they possible make the software non free.
Under '2. Vertragsgegenstand' there is a bold paragraph which goes like this (in German):
"Sofern der Lizenznehmer die Software bearbeitet und diese Bearbeitung Dritten zugänglich macht, ist er verpflichtet, dem Lizenzgeber auch eine Kopie der Bearbeitung kostenlos zukommen zu lassen, oder, sofern die Bearbeitung öffentlich und kostenlos zugänglich ist, dem Lizenzgeber die Quelle mitzuteilen."
I try to translate this, but please, all you other guys from Germay, correct me, if I'm writing bulsh*t :-)
"If the licensee modifies the software and makes this modification available to third parties, he is obligated to make available a copy of the modification to the licenser at no cost, or, if if the modification is available publicly and at no cost, to inform the licenser about the source."
Maybe the better translation would not be "make available a copy" but "pass on a copy", which is even worse (makeing available is passive, passing on is active so to say).
IMHO this is *not* compatible with the GNU GPL.
Under '3. Sorgfaltspflicht des Lizenznehmers' in the AGBs it is said that:
"Der Lizenznehmer ist verpflichtet, sein Passwort für den Zugang des Downloadbereiches sorgfältig aufzubewahren und Dritten nicht zugänglich zu machen. Der Lizenznehmer haftet für alle Schäden, die aus der Verletzung dieser Sorgfaltspflich entstehen."
Again, I try to translate:
"The licensee is obligated to carefully keep his password for the download area [of the web site] and not to disclose it to third parties. The licensee is liable for any damage which rise from a violation of this obligation of carefulnes."
I don't see any license problem with this sentence but wonder, what it's purpose may be. Of course it's possible to missuse access to the download area and go wild in it (if the server is badly configured). But the danger of this seems to be pretty low, even more because I don't see any difference in playing with the public available pages of the site or with the protected pages. If I can break the server using the pages in the protected download area I surely can break it using the publicly available pages.
So why this sentence? What if I download the software and immediatly put it on my own web site for download without the need for registration? Even though I don't disclose my password, I make available all the additional information I got from registering at the original web site. The licenser could interpred this as a violation of the obligation quoted above.
Maybe the purpose of this paragraph is to protect other software or data available for download on this page which is not GPLed. In that case, it would make perfect sense and would have nothing to do with the GPL.
Under '5. Schutzrechte Dritter' the licenser states that according to his knowledge the software does not violate the rights of any third parties (in Germany). To keep it that way the licensse is obligated to (and again, my poor translation):
"not use the software for himself or under order of third parties for the purpose of searching for violation of third party rights",
"immediatly inform the licenser if third parties claim any rights",
"if the licensee has the imperssion that the software violates third party rights he is obligated to immediatly inform the licenser in written form about this violation including a detailed description of the act of violation. It is disallowed to the licensee to inform any other natural of legal entities without written permission of the licenser (about the violation of third party rights)."
"If any of the about obligations ('Nebenpflichten') is violated the licensee takes the obligation to pay compensation to the licenser for all damage done by the violation."
I don't think this paragraph is valid at all according to German law. You can't by contract hinder someone from informing others about a violation of a law. Not sure if this paragraph is compatible with the GPL or not.
And on and on...
As stated above under 1. I think these additional conditions make the software non free software.
One additional problem I see is: Will these AGBs be valid for people that get this software from somewhere else? They will probably never have seen them...
I should add that all the AGBs I quoted above are presented as prospective conditions which at the moment undergo a legal validation.
If you could pleas share your options about how to judge these additions and if they are incompatible with the GNU GPL or even make the sum of these conditions and the GNU GPL a non free software license, I'd be grateful. I'd hate to step on the toes of the guys who made the software without any reason :-)
I think it would only be fair to point these problems out as soon as possible, instead of letting them do what they want now and making troubles later.
Thanks,
* Reinhard Mueller [Sun, 27 May 2001 at 22:44 +0200]:
Lutz Horn wrote:
today I stumbled across a software project called ILIAS
[...]
"If the licensee modifies the software and makes this modification available to third parties, he is obligated to make available a copy of the modification to the licenser at no cost, or, if if the modification is available publicly and at no cost, to inform the licenser about the source."
Maybe the better translation would not be "make available a copy" but "pass on a copy", which is even worse (makeing available is passive, passing on is active so to say).
IMHO this is *not* compatible with the GNU GPL.
[...]
One additional problem I see is: Will these AGBs be valid for people that get this software from somewhere else? They will probably never have seen them...
That's a good point. As far as I can see a major point for the FSF to judge a license as compatible with the GNU GPL or even as a non free license is the amount of trouble someone has to take in distributing a (modified) version of the software. If this amount of trouble is too big, like in advertising the original programmer, sending him a copy of the modified version, or making any third person aware of additional obligations he's taking against the original programmer, the FSF would rule such a license as either incompatible or even non free. Is this correct?
It'd definitely be too much trouble to tell everybody I give a (modified) version of the software: "Hey, you got that from me under the terms of the GNU GPL but remember to adher to the additional conditions layed down in the AGBs of the original programer. What, they aren't reachable anymore? Too bad."
I think it would only be fair to point these problems out as soon as possible, instead of letting them do what they want now and making troubles later.
That's a good idea. I'll sleep about it now and contact these guys tomorrow. But if you other guys out there have an opinion about this topic, please speak out (and don't get distracted by my other postings with a more ideological pitch ;-)
Regards Lutz
Lutz Horn wrote:
That's a good point. As far as I can see a major point for the FSF to judge a license as compatible with the GNU GPL or even as a non free license is the amount of trouble someone has to take in distributing a (modified) version of the software. If this amount of trouble is too big,
From my understanding it's not a question of big or tiny trouble. Not even the smallest obligation that has to be fulfilled for distributing modified and unmodified versions of the software is acceptable for being GPL-compatible (or even calling it "GPL"), apart from the obligation to stick to the GPL.
Thanks,
Lutz Horn wrote:
today I stumbled across a software project called ILIAS, available from
http://www.ilias.uni-koeln.de/ios/index-e.htmlThe software of this project is released under the GNU GPL but before you can download a copy you additionaly have to agree to so called 'Allgemeine Geschäftsbedingungen (AGB)' which on the project site is translated as 'general terms of business'. In this AGBs there are three terms that make me wonder if they are compatible with the GNU GPL or if they possible make the software non free.
Under '2. Vertragsgegenstand' there is a bold paragraph which goes like this (in German):
"Sofern der Lizenznehmer die Software bearbeitet und diese Bearbeitung Dritten zugänglich macht, ist er verpflichtet, dem Lizenzgeber auch eine Kopie der Bearbeitung kostenlos zukommen zu lassen, oder, sofern die Bearbeitung öffentlich und kostenlos zugänglich ist, dem Lizenzgeber die Quelle mitzuteilen."
I try to translate this, but please, all you other guys from Germay, correct me, if I'm writing bulsh*t :-)
"If the licensee modifies the software and makes this modification available to third parties, he is obligated to make available a copy of the modification to the licenser at no cost, or, if if the modification is available publicly and at no cost, to inform the licenser about the source."
Under http://www.gnu.org/philosophy/license-list.html I searched for a license which has a similar obligation and I think that maybe the 'Open Public License' may hold as an example. According to the FSF the 'Open Public License' is "not a free software license, because it requires sending every published modified version to a specific initial developer."
Now am I right in thinking that the addition of the AGBs to the GNU GPL as quoted above makes the sum of GNU GPL and AGBs a non free software license?
I think so. I also think it means that you can't redistribute the software at all because (according to GPL) you could possibly do it under GPL conditions without further restrictions, but according to the paragraph above you would have to impose further restrictions, so as a result you can't redistribute it at all (GPL, §7).
Under '3. Sorgfaltspflicht des Lizenznehmers' in the AGBs it is said that:
"Der Lizenznehmer ist verpflichtet, sein Passwort für den Zugang des Downloadbereiches sorgfältig aufzubewahren und Dritten nicht zugänglich zu machen. Der Lizenznehmer haftet für alle Schäden, die aus der Verletzung dieser Sorgfaltspflich entstehen."
Again, I try to translate:
"The licensee is obligated to carefully keep his password for the download area [of the web site] and not to disclose it to third parties. The licensee is liable for any damage which rise from a violation of this obligation of carefulnes."
I don't see any license problem with this sentence but wonder, what it's purpose may be. Of course it's possible to missuse access to the download area and go wild in it (if the server is badly configured). But the danger of this seems to be pretty low, even more because I don't see any difference in playing with the public available pages of the site or with the protected pages. If I can break the server using the pages in the protected download area I surely can break it using the publicly available pages.
So why this sentence? What if I download the software and immediatly put it on my own web site for download without the need for registration? Even though I don't disclose my password, I make available all the additional information I got from registering at the original web site. The licenser could interpred this as a violation of the obligation quoted above.
If my conclusion above if corrent, you can't put it on your web site. So the effect of this clause seems to be that anyone who gets the software must have agreed to the AGB (unless someone else violated #1), so in any case they can sue someone ...
Under '5. Schutzrechte Dritter' the licenser states that according to his knowledge the software does not violate the rights of any third parties (in Germany). To keep it that way the licensse is obligated to (and again, my poor translation):
"not use the software for himself or under order of third parties for the purpose of searching for violation of third party rights",
"immediatly inform the licenser if third parties claim any rights",
If it's written like this, it's ridiculous. It should at least say "if the licensee knows that third parties claim any rights", otherwise it's not practicable.
"if the licensee has the imperssion that the software violates third party rights he is obligated to immediatly inform the licenser in written form about this violation including a detailed description of the act of violation. It is disallowed to the licensee to inform any other natural of legal entities without written permission of the licenser (about the violation of third party rights)."
"If any of the about obligations ('Nebenpflichten') is violated the licensee takes the obligation to pay compensation to the licenser for all damage done by the violation."
I severely doubt if this is really enforcable, but IANAL. But if they are, they surely contradict the GPL.
All in all I think these restrictions make the software quite non-free and the FSF might want to intervene against them (mis)using the GPL to give the impression that it was free.
Perhaps it was meant with good intentions, but the result is jsut the opposite.
Frank
On Sun, May 27, 2001 at 09:07:23PM +0200, Lutz Horn wrote:
today I stumbled across a software project called ILIAS, available from
http://www.ilias.uni-koeln.de/ios/index-e.html
To quote "Source>Licence" on this site:
"ILIAS is distributed under the General Public License (GPL). This license originates from the Anglo-Saxon system of law and is not fully applicable to the German system of law."
That's not true, surely? Is their understanding of history so poor they don't realise where the Saxons/Angles came from, or do they judge that too long ago ? :)
By my understanding, the AGB is supposed to clarify the GPL in terms of German law - by what they say, it's not supposed to radically change the meaning. It also seems to state at the top it has no legal validity :?
- Under '2. Vertragsgegenstand' there is a bold paragraph which goes like this (in German):
Vertragsgegenstand == contract?
"If the licensee modifies the software and makes this modification available to third parties, he is obligated to make available a copy of the modification to the licenser at no cost, or, if if the modification is available publicly and at no cost, to inform the licenser about the source."
Make your changes available to us free of charge. GPL states that any GPL program you modify must be licenced at _no_ charge, i.e., for free. I think they are trying to extend this beyond the licence, which is anti-GPL.
Now am I right in thinking that the addition of the AGBs to the GNU GPL as quoted above makes the sum of GNU GPL and AGBs a non free software license?
The addition of the AGB in and of itself doesn't, and I don't think it is intended that it does. I think :)
I don't see any license problem with this sentence but wonder, what it's purpose may be.
If the licencee redistributes, _they_ provide all source? That's the only explanation I can think of - they don't want to bear the cost of lots of people downloading from their site?
So why this sentence? What if I download the software and immediatly put it on my own web site for download without the need for registration?
I think that's okay.
"not use the software for himself or under order of third parties for the purpose of searching for violation of third party rights",
I think they're trying to cover their ass - "if you search for patent violations in our software, tough, that's illegal and you can't sue us". Since it isn't copying, modification or distribution, I doubt it contradicts the GPL.
As stated above under 1. I think these additional conditions make the software non free software.
I think it probably contradicts Freedom 1 (no patent searching :), possibly Freedom 3 (you're not free to redistribute modifications, you do have one obligation to the licensor). The first freedom restriction I could probably live with, the second probably not, but anyhow, it probably isn't free software.
I don't know if it contradicts the GPL. My gut feeling is it doesn't, but it is probably a grey area. I can see why they've done it though - they seem to be basically making the software available for as little cost to them (both financially, and the possbility of law suits etc.) as legally possible, as Universities tend to do. I think the strongest contradiction is with GPL Section 6, but whether or not they are restricting redistribution of modifications, I'm not sure :)
Interesting though!
Cheers,
Alex.
Alex Hudson wrote:
- Under '2. Vertragsgegenstand' there is a bold paragraph which goes like this (in German):
Vertragsgegenstand == contract?
object of agreement
"If the licensee modifies the software and makes this modification available to third parties, he is obligated to make available a copy of the modification to the licenser at no cost, or, if if the modification is available publicly and at no cost, to inform the licenser about the source."
Make your changes available to us free of charge. GPL states that any GPL program you modify must be licenced at _no_ charge, i.e., for free.
Nope. The only place the GPL talks of no charge (or rather "for a charge no more than your cost of physically performing source distribution") is when you distribute a binary and have to offer to provide sources (§3b).
Lutz Horn wrote:
It'd definitely be too much trouble to tell everybody I give a (modified) version of the software: "Hey, you got that from me under the terms of the GNU GPL but remember to adher to the additional conditions layed down in the AGBs of the original programer. What, they aren't reachable anymore? Too bad."
Not only trouble, but explicitly forbidden, the GPL is very clear on this: "You may not impose any further restrictions on the recipients' exercise of the rights granted herein." (§6).
The original authors may impose such restrictions on you because they're not bound by their license(*), but you may not impose these restrictions on others, so if the original authors would require you to do so, you may not redisitribute it at all, §7.
(*) As long as they're the only copyright holders. As soon as they incorporate any code from others, given to them under GPL (and according to their AGB, they seem to want to do so), they would be bound by the GPL themselves and it would be illegal for them to distribute that code under their AGB.
IANAL, Frank
On Mon, May 28, 2001 at 12:33:24AM +0200, Frank Heckenbach wrote:
Vertragsgegenstand == contract?
object of agreement
Hmmm. Sounds like there isn't really an English equivilent then :-)
Make your changes available to us free of charge. GPL states that any GPL program you modify must be licenced at _no_ charge, i.e., for free.
Nope.
Er, yep. Derived works must be licensed as a _whole_ at _no_ charge under the GPL (2b :). The GPL talks of charges at several junctures: each of sections 1, 2, and 3 at least. If you're not the author of software, it's impossible to charge for the software license.
(Note also we're only talking about the license here).
The original authors may impose such restrictions on you because they're not bound by their license(*), but you may not impose these restrictions on others, so if the original authors would require you to do so, you may not redisitribute it at all, §7.
Maybe this is their cunning trick :)
Seriously though, the AGB says many times that the rights of the licensee come from the GPL - the AGB is merely supposed to be a clarification of what they understand the GPL to be, I don't know if it would take priority over the GPL in a court (I would think not).
Cheers,
Alex.
Alex Hudson wrote:
On Mon, May 28, 2001 at 12:33:24AM +0200, Frank Heckenbach wrote:
Vertragsgegenstand == contract?
object of agreement
Hmmm. Sounds like there isn't really an English equivilent then :-)
Well, that's what my dictionary (freedict) says.
It basically means "the thing which this contract/agreeement is about".
Frank