ILIAS mix of GNU GPL with own terms

[Frank Heckenbach]

Lutz Horn wrote:

> 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?

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).

> 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.

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 ...

> 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 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

-- 
Frank Heckenbach, frank at g-n-u.de
http://fjf.gnu.de/
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