GNU General Public License Under German Law

In the first known court ruling anywhere in the world on the legal effects of the GNU General Public License (“GPL”), the District Court of Munich I in Germany (the “Court”) in May 2004 decided that the provisions of the GPL are enforceable under German law.

The lawsuit was initiated by one of the so-called “maintainers” and members of the core team of the netfilter/iptables software project, which aims to provide firewall functionality for the Linux computer operating system. The software developed by this group of programmers is licensed under the GPL, a widely used open source software licence. The GPL contains a number of provisions that are typical open source in concept: (a) Section 3: The right of the licensee to copy and redistribute the software, provided that the software is accompanied by the complete corresponding machine-readable source code, and is licensed under the terms of the GPL; and Section 4: Any attempt to otherwise copy, modify, sublicense or distribute the software is void and automatically terminates the licensee’s rights under the GPL.

The plaintiff had discovered that a manufacturer of router hardware was distributing firmware for its products in object-code format via its website. This firmware contained netfilter/ iptables code licensed under the GPL, but no source code was available in accordance with its obligations under the GPL.

In its decision dated May 19th, 2004, the Court upheld a preliminary injunction which had been earlier issued after the manufacturer had refused to sign a declaration to cease and desist breaching the GPL. In its judgment, the Court found that the licensing of software under the GPL can not be considered a waiver of copyright and related legal positions. The concept of the GPL, which (contrary to the aim of most normal software license agreements) uses copyright law to achieve a wide distribution of open source software, was accepted and confirmed by the Court. The Court also held German law to be applicable for deciding whether intellectual property rights had been licensed.

The Court agreed with the prevailing view in German legal doctrine that the terms of the GPL are general terms and conditions (Allgemeine Geschäftsbedingungen) in the meaning of section 305 et seq. of the German Civil Code (BGB). Under German law, there are a number of requirements on how general terms and conditions may become part of a contract and limits as to the content that they may have. Here, the Court held that the English-language GPL had become binding between the parties despite the fact that there is only a non-official German version of it since “English is the prevalent foreign language in the computer industry” and because the router manufacturer was a commercial software business.

The Court then examined section 4 of the GPL which provides for an automatic fall-back of rights in case of a violation of the GPL and found that this provision does not unfairly discriminate the licensee and is therefore valid under German law. Similarly, sections 2 and 3 of the GPL, which obligate distributors to make machine-readable source code available for any software licensed under the GPL, were also held to be valid.

It is worth noting that the Court also addressed the hypothetical case of what would have happened if its interpretation of German law had come to a different result and had held that sections 3 and 4 of the GPL were invalid. In the view of the court, sections 3 and 4 of the GPL contain a fundamental concept of open source software, and without these, the open development of GPL software would be in danger. Therefore, the court stated that without these sections of the GPL, there would likely be no agreement at all between the parties, the result being that the licensee would not have any rights to use, modify, copy or distribute the software. This decision will have the effect of discouraging any licensees from challenging the validity of sections 3 and 4, since they would risk nullifying the license.

The decision is remarkable because it affirms that the GPL has full legal effect in Germany and that licensors can enforce their rights if the GPL is violated. Despite the fact that the GPL has the look and feel of a U.S. legal document, the Court easily identified and accepted its key concepts and adequately interpreted them in the light of the German Copyright Act. Even though the concepts of “license” and “contract” are not necessarily identical in U.S. and German law, the GPL was held to have full effects in Germany. There are reasons to believe that other German courts will find this well-founded decision convincing and follow it. However how courts in other jurisdictions will view this decision is not so clear.