Free software Germany GPL

edA-qa mort-ora-y eda-qa at
Wed Jul 2 14:55:58 UTC 2003

Onno Timmerman wrote:
> And if so what legal work should be done to make it legal. If somebody 
> knows if any resaerch has be done in Belgium I would welcome it and try 
> to get a new law in act that make GPL very wel protected.

It appears that in the music scene the law would already create 
precedent allowing the GPL style contract.  In particular, we had to 
deal with GEMA to release a new CD, and we learned a few things about 
their contracts with their members that *may* be at odds with some 
points of this legal analysis (I'm working from the translation bits 
since I can't read German well enough).

With a GEMA member contract you assign exclusive rights to your creative 
works to GEMA.  The terms of these rights are very clear, and although 
GEMA has found itself in court a few times in this regards, the general 
system seems to stand.

Point 1: The article suggests you may only assign "use rights" to those 
uses of the work that are presently known.  GEMA has recently enacted 
new guidelines and regulations dictating the use of their member's 
repetoire on the Internet.  If this limitation of "present uses" is 
correct, then I would assume GEMA would need to get an contract 
extensions from every member authorizing it.

Point 2: The article mentions you cannot assign copyrights, this is the 
case in other countries as well (Canada as example).  In the GEMA 
contract you don't assign any of these rights, you assign the right to 
royalty collection (which is an alienable right).  Under the GPL you are 
also not assigning any copyrights, you are assigning a distribution 
right mainly (which is still alienable in Germany).  Perhaps the wording 
could be clarified in the GPL towards alienable/inalienable rights and 
exactly what is being consented to.  I do assume however that if GEMA is 
able to get away with blanket exclusive rights assignments in the 
situation of commerical exploitation, then the GPL should be able to 
assert similar conditions.

Point 3: Contributory liability.  CD Audio Carriers are effectively 
derivative works from musicians recordings, which are derivative works 
of the composers/lyricists.  If a record label put a protection device 
on the CD that harmed your player/computer, it seems hard to believe 
that the original composers, or even musicians, could somehow be liable 
for this damage (this even in a case where the entire chain of 
contribution involved financial gain, whereas in the GPL it probably 
does not).

These two points should be a starting reference for more research (of 
which I can't do since my German doesn't allow me to get any further). 
The parallel to GEMA is quite important though, since the restricted 
distribution of music is made by the same means as the restriction of 
software distribution: copyright laws.

edA-qa mort-ora-y
Idea Architect

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