ILIAS mix of GNU GPL with own terms

[Reinhard Mueller]

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.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."

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.


> 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.

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.


> 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."

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
GNU Enterprise project
http://www.gnue.org