ILIAS mix of GNU GPL with own terms

[Lutz Horn]

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 <lh at lutz-horn.de>
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