Bochum Regional Court (March 03, 2016 – Case 8 O 294/15) again affirmed an obligation to pay compensation for damages when using open source software in violation of the terms of its open source license.
The court holds that rights of use are lost if the software recipient violates the applicable GNU General Public License version 2 (GPL 2.0). The defendant had distributed the software without the license text of GPL 2.0 and had neither provided nor offered to provide its source code. Because of these violations of GPL 2.0, the subsequent use was held to be unauthorized. Since the defendant had acted negligently, it is obligated to pay damages. As far as the amount of damages is concerned, the district court is likely basing it on the remuneration of an appropriate commercial license.
The ruling continues recent jurisdiction on liability for damages for violations of an open source license (see Bochum Regional Court, January 20, 2011 – Case 8 O 293/09; Cologne Regional Court, July 17, 2014 – Case 14 O 463/13). For open content under a Creative Commons license, Cologne Higher Regional Court (October 31, 2014 – Case 6 U 60/14; note Schweinoch in NJW 2015, 794) had denied liability for damages for license violations.
Practical tip: Failing to comply with an open source license may not only lead to automatic loss of the rights of use, but additionally to liability for damages. Therefore, careful attention should be paid to the recognition of and documented compliance with open source licenses.