Englische Uebersetzung der Stellungnahme von ifross zur VSI-Studie

[Juergen Fenn]

Hallo,

die Stellungnahme von ifross zu der Studie von Prof. Dr. Spindler,
Göttingen, für den VSI unter

  http://www.ifross.de/ifross_html/home2_2003.html#ARTIKEL28 

liegt jetzt in einer englischen Übersetzung vor, die auf www.ifross.de
abrufbar ist. Sie wird unten zitiert.

Grüße,
Jürgen.



Dispute on Legal Issues Surrounding Free Software Intensifies (04.07.2003)
By Dr. Axel Metzger and Dr. Till Jaeger

The controversy over legal problems surrounding Free Software has been
stirred further by two new statements. Within a few day's time both a
legal opinion by Professor of Law Gerald Spindler of German University
of Goettingen for the German Software Association "Verband der
Softwareindustrie Deutschlands e. V.", or VSI, as well as a paper
written by Paris Professor of Law Christophe Caron in the most
important French law journal Dalloz (Dalloz 2003, issue no. 23,
p. 1556) have been published. Mr Spindler's study is to be found at
the center of interest, accompanied by widespread press coverage.

VSI's press release bears the title "Studie belegt
Rechtsunsicherheiten", or "Study Confirms Legal Risks". It cuts Mr
Spindler's paper short on statements critical on Linux. This is not
surprising bearing in mind that VSI in the first place represents the
interest of proprietary software industry. On the contrary, the paper
in fact is much more incisive and minute. So we would be jumping to
conclusions altogether wrong in stigmatising the author as an outright
opponent of Free Software. The legal problems the author draws his
attention to are already well known. Mr Spindler generally agrees to
opinions published priorly by others, dissenting on only a few
issues. On the whole he agrees to what is generally accepted by his
fellow scholars in the field. As far as he dissents, his opinion is
disputable. In particular, we have found some misunderstandings as
well as a number of wrong interpretations of the meaning of software
licences. We exemplify this by exploring some stipulations of the GNU
General Public Licence, or GPL. A more complete analysis of
Mr. Spindler's study is still to be completed. For this, we have to
wait for the dissertation theses by Koglin and Schulz as well as a new
edition of Jaeger & Metzger's "Open Source Software -- Rechtliche
Rahmenbedingungen der Freien Software" which will discuss problems
involved in detail.

First of all, it is irritating that the terms "freeware" and "Free
Software" seem to be used as synonyms in the paper (p. 18). Software
programs distributed as freeware in most cases do not conform to the
Free Software Foundation's or the Open Source Initative's definition
of Free Software. In the case of freeware the user is generally not
allowed to modify the program code. Mr. Spindler's use of vocabulary
is misleading and does not conform to common technical usage.

The study deals with complex projects in which a large number of
software developers participate, working together simultaneously, or
subsequently on writing software. We do welcome that the author
propounds that each member of the project may bring an action for
injunction based on copyright law against any violator, thus acting
for each member of the project without having to name all of them
personally (p. 26). This result is most important for the question how
to seek legal protection for copyright law infringements. It conforms,
however, to conventional wisdom. It is important, and
"Linux-friendly", too, that according to the author he will lose
copyright who infringes the obligations imposed by the GPL. This
issaid in GPL's section four. According to German law this is to be
seen as an "auflösende Bedingung", or a "dissolving condition" cf. §
158 sec. 2 BGB (p. 31).

It is, however, midleading that Mr Spindler's paper in a number of
cases addresses a so-called "Pflicht zur unentgeltlichen Weitergabe
der Open Source Software", or an "obligation to redistribute Open
Source software for free". There is no such obligation whatsoever to
redistribute, or to share software contained in the GPL. The GPL does
impose certain obligations if a licensee redistributes software
voluntarily, or if he obliges himself to redistribute software. The
point is, that there is no such thing as an obligation to publish, or
to republish software. On the other hand, according to section one
subsection 2 of the GPL it is allowed to redistribute software for a
charge provided that it is not meant to be a licence
fee. Unfortunately the paper does not address the matter how to draw
the distincion between a simple charge and a licence fee. So this
issue remains to be dealt with in future research.

The author treats the matter of how to include Open Source lincences
in contracts (under German contract law) with users. This discussion
is to be found at the center of the paper. It is of pivotal
importance, and the matter is dealt with in a rather problematic
way. The author argues that shrink-wrap licences generally are void
contracts provided that German law is applicable. This is a benefit of
his paper. However, in addition to that the author elaborates on the
difference between both phenomena, the 'classical' shrink-wrap licence
as well as Open Source licences. With the former kind of licence
consumer's rights are reduced to merely using the software, while Open
Source licences provide for rights going far beyond that. With a
shrink-wrap licence a consumer generally purchases the right to make
use of a program that is reduced later at home when he learns of
limitations to his rights from reading the licence. As opposed to
that, such problems do not exist at all with GNU/Linux & Co. In this
respect the paper is worked out rather carefully although it is easy
to see that the author does not evade parallels to conventional
software licences. The paper holds that Free Software licences become
part of a contract by including a redistributed copy of the software
purchased by the user. This is incorrect, however, as these licences
are independent from the contract. Both the purchasing the
software---no matter whether this is achieved by download, or by way
of a distribution on CD, or on DVD---as well as acquiring rights from
the licence form two seperate contracts which are altogether
independent of one another. Regularly, there is no more contract as a
typical user will not modify, copy, or redistribute the software at
all. In this case according to German law an express consent on using
the software is not at all required according to § 69d sec. 1
UrhG. This is why including free software licences in contracts has to
be seperated from the mere purchase of software. Bearing this in mind,
contrary to Mr Spindler's point of view considerably fewer problems
arise with free software licences. ftware at all. In this case
according to German law an express consent on using the software is
not at all required according to § 69d sec. 1 UrhG. This is why
including free software licences in contracts has to be seperated from
the mere purchase of software. Bearing this in mind, contrary to Mr
Spindler's point of view considerably fewer problems arise with free
software licences.

According to the paper, including free software licences in purchase
contracts does not fail due to the question discussed above, but
rather due to a, say, lingual matter. A German-speaking consumer
cannot be expected to understand an English-language licence. We doubt
whether this opinion will prevail, particularly in German courts. For
it would be a contradiction in terms if a consumer on the one hand
would argue on the basis of an Open Source licence, whereas on the
other hand obligations from the very licence were not to be seen as
legally binding because they were written in a foreign language. It is
altogether out of the way to argue that a consumer is not entitled at
all to rights arising from a free software licence as he cannot read
and understand it. We think, however, that the Free Software community
should become more professional. It would be helpful indeed to bring
about multilateral licence politics drawing on the specific problems
of the law of consumer protection in Europe, bringing about licences
in more than one language.

As to the range of the rights a user is entitled to by a Free Software
licence the author pursues an approach altogether contrary to what
generally is held in jurisprudence so far. Mr Spindler argues that the
right to make software available publicly which is necessary for
redistributing Free Software over the internet is not part of the GPL
itself (p. 61). Furthermore he argues that the GPL does not comprise
online, or cyber-law as due to international treaties that became
legally binding in the U. S. in 1997 we have to distinguish between
physical distribution of software, and the 'making available' of
software (p. 44). However, this is not in line with the conventional
rules of interpretation in jurisprudence. The Linux kernel has been
published under the GPL mostly. So developers should have known about
redistrubuting code over public networks even in 1991 when GPL version
2 was drafted (cf. Torvald's autobiography "Just For Fun").

Result:

VSI's announcement about the legal risks in developing and using Free
Software was premature. This is why in the meantime it has provoked
harsh criticism by Free Software lobbyists (cf. the FSF Europe's
statement as well as LIVE's press release, both in German). The new
study contains mostly long-known findings. It does not doubt that the
Open Source model basically works. Of course, we may discuss problems
already known, but this does not lead to the result proposed by
VSI. Anyway the question is whether VSI has done its members a favour
at all in publishing the paper, initiating that much
publicity. "Proprietary" software companies, too, make use of Free
Software more and more. So they also need legal standards to rely
on. Propagating doubts concerning legal risks in the field will not
reverse economic development. The software industry will have to deal
with Free Software as another model rather than trying to push it out
of the market.

English translation by Juergen Fenn.