Whoever commercially uses licensed open source software must specify the developer and source code or risk claims for damages, according to a recent decision of the District Court of Bochum, Germany.1 This appears to be the first decision by a German court related to the violation of copyrights of a software developer that are anchored in the GNU Lesser General Public License (LGPL).

Introduction

Open source or free software refers to software whose source code is available to everyone. The official definition of the Open Source Initiative (OSI) lists four basic freedoms of use, which are attributed to the founder of the free software movement, Richard Stallmann.

Accordingly, a user may

  • Use the software for any purpose;
  • Study the source code in order to find out how the program functions;
  • Distribute the software to others without restrictions; and
  • Change and improve the software and publish the changes in order to make them available to the general public.

In recent years, open source software has not only become an integral part of the software environment in Germany, but also many companies are using Linux, OpenOffice and Mozilla as their servers on a daily basis. Additionally, more than a few software manufacturers turn to open source components when developing new software.

Although the almost 200 different open source license models have a common basis in terms of the rights of use, modification and circulation of source codes, there are significant differences with regards to the conditions that are connected with exercising the rights granted. Different terms have been used for the commercial distribution of open source software and transmission as part of closed source software. While some licenses require, for example, that every application derived from free software will likewise itself be an open source (so-called strong copyleft) and will only be distributed under the same conditions that also apply for the original software, others have lesser requirements (so-called weak copyleft) or no requirements at all in this respect.

A strong copyleft should guarantee that a source code that has once been released as an open source truly remains free and cannot find its way into a proprietary product, whose code is kept under lock and key. The most prominent representative of this type of a strictly understood copyleft is the GNU General Public License (GPL). It allows the user to use, modify and distribute the source code as long as the recipient is also granted the same rights. Changes with respect to the original code must be explicitly designated. The distribution in binary form requires that the source code is either included or is available at any time.

A well-known example of a copyleft designed to be weaker is the GNU LGPL. In contrast to the GPL, all programs that use only LGPL licensed software externally, for example, as a program library, can retain their own licenses. The LGPL is, therefore, particularly suited as a license for libraries, which one would also like to permit programmers of proprietary programs to use.

Classification of Open Source Software Under German Copyright Law

Open source software is subject to copyright law in Germany – just like any other software. With regards to the GPL, it was, however, questionable in the past whether the licensing terms largely influenced by the United States would also withstand German law.

This uncertainty was eliminated in 2004 by the District Court of Munich. The judges determined that the GPL represents valid general terms and conditions of business. If such terms and conditions are effectively included in the contracts on rights of use, they ensure that a violation of the GPL can lead to the automatic relapse of rights and, thus, to an expiration of the rights of use.

A user authorization under the LGPL only exists if the formal conditions are observed, even if the authorized use is free of charge.

The Court Decision

In the case before the District Court of Bochum, the main issue was the extent to which the developer of a certain software that is distributed under an LGPL is entitled to claims for injunctive relief and damages in the case of violations of the conditions of that LGPL. When distributing the program “WISO Mein Büro 2009,” the defendant provided neither the licensing text of the LGPL nor the source code of the underlying software “FreeadhocUDF,” contrary to the licensing terms, and failed to specify the name of its developer. “FreeadhocUDF” was published on the Internet under the conditions of the LGPL and had been made available at no charge. In a partial judgment, the 8th Civil Division of the District Court of Bochum recognized the merits of the claims by the plaintiff, Adhoc Dataservice, for information and compensation. The court decided that the marketer of the software collection, Buhl Data Service, violated the copyrights of the plaintiff by distributing the software contrary to the licensing terms.

The court initially clarified that a user authorization under the LGPL only exists if the formal conditions are observed, even if the authorized use is free of charge. Otherwise, the creators would have practically no rights. The determination regarding LGPLs in this case should be applicable to all open source programs that are made available under certain licensing conditions.

The Bochum court’s decision can be seen as a clear strengthening of the legal position of free software developers. Economic interests are often not the most important issue for the creative individuals in the open source field – specifying the name of the developer is much more important for insiders to, perhaps, gain recommendations for new job opportunities. Until now, open source developers in Germany have rarely tried to defend their copyrights in court in view of the imminent cost risk. The reluctance of developers may, however, no longer be an issue following this recent decision.

The amount of damages that the defendant in this case must pay and how such damages are to be calculated still need to be decided during the further course of legal action. The calculation is especially difficult here because the plaintiff did not develop the program alone and the plaintiff’s share for adapting the software first needs to be determined. The final decision is eagerly awaited.

Practical Tips

When using open source software that is available at no charge on the Internet, it is advisable in all cases to thoroughly review the terms of the underlying open source licenses before commercially exploiting any new software products based on such open source software, in order to eliminate the risk of any copyright violations. In cases of doubt over the scope and content of licensing terms, legal advice should be obtained before marketing any new software products. Otherwise, developers run the risk of legal action.