Free Licenses – Legally Watertight, but Tailored to American Law
It is astonishing, with which trust in God European venture capitalists and software companies pump many millions of Marks into the new market of Free Software, without worrying about the legal security in dealing with GNU/Linux and the other Free Programs. One seems to be sure that the authors of the GNU General Public License, the Free BSD Copyright and the Mozilla Public License have done their work conscientiously, so that the freedom of use and further development of the software is on solid ground from a legal point of view. This has not yet been confirmed by any court in the world. But it will be all right.
It is a fact that the most important Free Licenses have indeed been constructed in a legally watertight way, this is especially true for the GNU General Public License, which is the relevant license for the whole market of the GNU/Linux operating system. Unfortunately, it is all too often overlooked that the license is tailored to US law. In European law the clocks go differently. What can be effectively agreed upon in a license on the other side of the Atlantic does not necessarily have to work as smoothly in Europe.
In legal circles, the effectiveness of licenses in Germany and Europe is therefore the subject of lively debate. predominantly the central provisions are considered to be legally binding. However, there are discrepancies between the concept of Free Software and the protection rules in favor of the author, which are found in German copyright and contract law.
American and European copyright law are based on different philosophies. According to the American interpretation, copyright is an economic good. The principle of freedom of contract prevails. If the author wants to transfer his rights to a work in full, this is possible.
In Europe, copyright is seen as an economic good, but at the same time as a personal right of the author, comparable to the right to one’s own image or privacy. That’s why in the German and French law there are regulations which declare the complete deprivation of the right to a work inadmissible. If an author concludes such a contract, it has no legal effects. Contracts in the field of moral rights are possible only under narrow conditions. The freedom of users to modify the software as they wish, which is typical for all free and open source licenses, constitutes such a legal transaction over the personal right of the author. Here are points of friction between the licenses and the European copyright law.
Draft law pro Free Software
However, the freedom of contract in Europe is limited from another point of view. The basic idea of copyright law is to protect the author from too far-reaching, disadvantageous contracts. The current law is already interspersed with regulations that restrict blanket transfers of valuable rights over the work. The bill now passed by the federal cabinet "Draft of a law to strengthen the contractual position of authors and performing artists" is part of this tradition (Justice Minister fights against disenfranchisement of creative people).
It is noteworthy that the draft has taken the opportunity to clarify the areas of conflict between European copyright and "Copyleft" not to be further brutalized. The cabinet decision represents the first bill in Germany to address the concerns and objections of the free software scene. With the current majorities in parliament, it seems quite likely that the bill will be passed.
What does the draft provide in detail? Central is the regulation proposed in § 32 UrhG (draft). According to this, the author shall in the future have a legal claim to "adequate remuneration" to all those who use his work. This claim is in principle designed as indispensable. It is irrelevant how disadvantageous the contract conditions are in detail, which are imposed on the author. The author’s right to adequate remuneration is not affected by contrary contracts.
The original version of the bill did not provide for any exceptions to the obligation to pay royalties. For free software licenses this had led to considerable legal uncertainty. Even if the advocates of Free Software will not tire of explaining that Free Software is more than "Free software" it must be noted that the waiver of license fees by the authors is one of the central characteristics and success engines of Free Software. But what happens if a programmer makes his software subject to a Free License, only to later have his "statutory compensation claim" against distributors and users? The consequences were fatal, the Free Software model as a whole was called into question.
These dangers have also been seen in the Federal Ministry of Justice and they have managed to come up with an exception for Free Software. In the draft law, an exception to the legal right to remuneration for Free Software and other "Open Content" later: "The right to reasonable compensation cannot be waived in advance, as long as the author does not grant a simple right of use to everyone free of charge." The wording is based on a statement (PDF file) of the Institute for Legal Ies of Open Source Software. Erfasst sind dadurch alle Freien und Open Source Lizenzen. The continuation of the license fee exemption seems to be secured for the time being.
"German GNU General Public License"?
If this initiative of the legislator has a model character, further adaptations of the copyright law to the special requirements of free license models will have to be implemented? This is possible, but not very likely at this point in time. The Free Software camp would therefore be ill-advised to sit back and let the legislators take responsibility for resolving the remaining discrepancies.
The Free Software Foundation has recently announced that it will support the creation of special versions of the GNU General Public License tailored to a country’s needs. These licenses are to bring in the respective national language a careful Anpang of the license regulations to the regulations of the respective national right with itself. The initiative is important, since a binding German-language version with some unavoidable adaptations to the local law would largely eliminate the existing frictions.
The Free Software Foundation Europe has already started working on such a license in France. On 4. July, a meeting of French and American lawyers will take place in Bordeaux to "Copyleft"-lawyers will take place in Bordeaux to discuss the current state of the work.