Fri, Apr. 23, 2004

German GPL Ruling not That Influential

CK - Washington.   Addendum to the GPL decision discussed on Wednesday: In a commentary, GPL Gains Clout in German Legal Case, Stephen Shankland attaches greater precedential significance to the injunction than may be warranted. Yet, he paints a vivid and useful contextual picture of the international legal environment surrounding the GPL.

I would disagree with a quote Shankland includes about the German and American legal systems of contract law being similar. They are really quite different and the differences exert a marked influence on the validity of the GPL. In addition, without an opinion from the court, any interpretation of the Munich ruling may eventually find support. That would include the view that the court may have disregarded, and found unnecessary to explore, the GPL and simply ensured that the creator of a copyrightable work may impose any legal terms for its distribution while a distributor may not give the false impression that a work is in the public domain or in his own ownership. The same result would hold true for any of the multitude of distribution schemes involving published source code and for those prohibiting the publication of source code.

Depending on whether one advocates a philosphy favoring or abhorring the publication of source code for software, one may arrive at different conclusions. When you descend from the clouds of licensing philosophy and reenter the vibrant reality of drafting, selecting or using licenses, with or without the publication of source code depending on business model and many other important factors, the Munich decision is not all that useful.

Addendum May 6, 2004: See discussion at Slashdot.

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