[FSFE PR][EN] FSFE wants to better protect Free Software licenses from bankruptcy

[press at fsfeurope.org]

=  FSFE wants to better protect Free Software licenses from bankruptcy =

[Read online: http://fsfe.org/news/2012/news-20120730-01.en.html ]

When the companies or authors that license Free Software enter
bankruptcy there is a risk that granted Free Software licenses will face
legal challenges in some jurisdictions. FSFE is now trying to prevent
this situation in Germany. The expert institution ifrOSS supported by
FSFE suggests German Ministry of Justice to include a specific Free
Software clause in the German Insolvency Code.

It is not entirely clear what can happen to the Free Software licenses
that were granted by rights holders either before or after they went
bankrupt. This lack of clear rules could greatly endanger functioning of
the Free Software, which depends on the contributions from numerous
rights holders.

Some time ago, German Ministry of Justice published an initiative to
improve the regulation of licenses during the insolvency proceedings. As
a response, ifrOSS (Institute for Legal Questions on Free and Open
Source Software) supported by FSFE now prepared the suggestion of the
Free Software clause that could effectively remove the problems
specifically associated with the Free Software. The clause ensures that
Free Software licensing model would not be negatively affected by a
bankruptcy of a licensing rights holder. It makes it clear that any
offer to grant Free Software license made before the licensor's
bankruptcy can be accepted by anyone even after the bankruptcy
proceedings started.

FSFE asks the German Ministry of Justice to consider this proposal
favourably as it can greatly contribute to the legal certainty of the
Free Software based industries, such as automotive, mechanical
engineering and IT field.

ifrOSS together with FSFE asks the government to include the following
clause in the newly proposed § 108a of the Insolvency Code
(/Insolvenzordnung, InsO/):

  Original version: "(4) Wenn der Schuldner durch Lizenzvertrag
  unentgeltlich ein einfaches Nutzungsrecht für jedermann einräumt, so
  findet die Regelung des § 103 InsO keine Anwendung. Das vom Schuldner
  vor des Insolvenzverfahrens abgegebene Angebot auf Abschluss eines
  solchen Lizenzvertrags, kann auch nach Eröffnung angenommen werden."

  English version: "(4) When the debtor grants somebody a non-exclusive
  right by means of a license agreement without consideration, the rule
  stipulated in § 103 Insolvency Code shall not apply. Debtor's offer to
  conclude such license agreement made before the initiation of the
  insolvency proceedings can be also accepted after the insolvency
  proceedings have been initiated."

Shall the Free Software face similar problems in other jurisdictions, we
kindly invite you to contact us or take similar steps.

FSFE works for the public good. Its activities can be supported by
signing up at http://fsfe.org/support


== Further links ==

- Legislative Initiative of the German Ministry of Justice (de)
  http://www.der-betrieb.de/content/pdfft,0,466327
- The press release of ifrOSS (de)
  http://www.ifross.org/artikel/vorschlag-des-ifross-insolvenzrechtlichen-fragen-bei-oss-lizenzen
- The entire proposal of ifrOSS (de)
  https://www.ifross.de/ifross_html/120506%20Stellungnahme%20InsO.pdf


== About the Free Software Foundation Europe ==
  
  The Free Software Foundation Europe (FSFE) is a non-profit
  non-governmental organisation active in many European countries and
  involved in many global activities. Access to software determines
  participation in a digital society. To secure equal participation in
  the information age, as well as freedom of competition, the Free
  Software Foundation Europe (FSFE) pursues and is dedicated to the
  furthering of Free Software, defined by the freedoms to use, study,
  modify and copy. Founded in 2001, creating awareness for these issues,
  securing Free Software politically and legally, and giving people
  Freedom by supporting development of Free Software are central issues
  of the FSFE.
  
  http://fsfe.org/

  Contact: Matthias Kirschner, Free Software Foundation Europe,
  Linienstr. 141, 10115 Berlin, t +49-30-27595290, m +49-1577-1780003