The GPL and non-U.S. law
Alex Thurgood, a partner in the French IP law firm Cabinet Michel Richebourg emailed me and suggested this topic. (Thanks, Alex.)Quoting from Alex:
One question that has always bothered me with free software licenses is their overall lack for any consideration of jurisdiction outside of the US. While as an IP lawyer, one might let pass an ironical smile knowing that the GPL was born in the US, and that this same country was one of the last major industrialized countries to sign up to the Berne Copyright Convention, it is nevertheless interesting to note that the majority, if not all, of the clauses of the GPL have been drawn up uniquely with US law in mind. The upshot of this is that, IMHO, the GPL is probably inapplicable in many countries outside the US. Indeed, in France, the GPL was considered by the scientific research community to be so inadapted to French law that it drafted a new free software license, called the CECILL.
End quote.
Germany has similar issues, as far as I can tell. For example, the analysis of the Munich decision upholding the GPL suggests that at least some Germans have a VERY different attitude toward licenses in general. (Maybe that is the reason for Alexander's antipathy toward the GPL. After all, he's from Germany.)
Australia has problems with the GPL as well. Under Section 68(1) of the Australian Trade Practices Act, disclaimers are apparently void if they don't comply with the language in the act, and it may bring down the entire agreement. See this at pages 76-80 for more detail. Australian info is courtesy of Ian Oi, Special Counsel at Blake Dawson Waldron in Australia, in his attempts at certifying another OSI license.
Maybe U.S. lawyers have been lulled to sleep by the promises in the Berne Treaty that all copyright law is the same.
What are the problems with the GPL overseas? Are they important? To whom?
6 Comments:
A license based on the German law is being drafted. Debian project has discussed this.
Could Alex tell us what makes GPL inapplicable? I read the Munich case analysis by professor Hoeren. He says that GPL may include conditions that are invalid and therefore GPL is invalid. If this is true, perhaps the copyright owner may not sue for damages but I don't believe it would give the user right to use the software.
Nikke
I am not sure how copyright works in Germany, but in Australia if the GPL license is found to be invalid then Australians will not lose the right to USE the software. The right to USE software is not a right in Australian copyright law. However, Australians would lose the right to distribute, reproduce, copy, and make derivative works from the software.
By the way, I am pretty sure Australia is in compliance with the Berne Convention but not the two recent WIPO treaties. But don't quote me on it, I will have to check to see what treaties they have actually ratified.
Wikipedia has a good outline what treaties have been ratified by Australia and other countries, but I am not sure if it is accurate. http://en.wikipedia.org/wiki/Copyright_treaty_table
However, the recent Free Trade Agreement between Australia and the USA may change the scenario. I am not exactly sure what is happening in the executive and legislative realm in regards to the FTA [the media has been extremely quite about it. Wonder why??] so I would have to do some research to see what legislation has been passed to ratify the agreement.
CM
This is in reply to Nikke's remarks.
Bear in mind that I am not a German attorney, am not German (in fact I'm British, but its irrelevant to the question ;-)), and haven't studied the Munich decision. My comments referred to the situation in France, THE ultimate ?? copyright bastion of the modern world - note the irony
My comments here relate to the GPL v2. The first point is that the licence contract is not in French. French law enacted the "Loi Toubon" for the protection of the French language that stipulated that all contracts and legally binding documents creating obligations towards another person have to be drawn up in French in order to be legally binding. To the present day, AFAIK, there is still no official translation of the GNU GPL. Wy the FSF hasn't bothered to consider this is beyond me, but still, maybe they think that litigation will only ever occur in the US.
One example is that the GPL contains product liability discharge clauses - offhand Article 2(c) says that you ought to include a "notice that there is no warranty" (if you are not providing one), and Article 11 explicitly disclaims warranty. Product liability under French law is not something easily waivered, even if the product is free.
The GPL doesn't explicitly concede a right to use the copyrighted work, which means that absent that specific right, you normally are not allowed to use a copyrighted work. Under French law, a copyright license to exploitation of the rights (diffusion, publication, distribution, representation, modification, etc), must also be made by a written document signed by the parties in order to be valid. That said, the courts have accepted software licensing without signed written instruments, but in each case, the user had to specifically accept or reject the licence conditions that were being offered (for example with an accept or reject button). The licence must also specify the supports on which the copyrighted material may be used, or otherwise exploited, the duration thereof, and the price, and if no price, then explicitly mention this.
Article 12 provides for the possibility of a blanket discharge of the copyright holder's liability in case of damage, destruction, loss of data, etc. Here again, the validity of such a clause is questionable, in the sense that the author is ultimately responsible for the damage that might be caused by the malfunctioning of a software program that that person has written (of course, it would have to be proven).
The most obvious example would be say an author who wrote a virus program. Aside from the fact that there would potentially be remedies against this kind of author under French penal law, civil law liability might also be applicable.
Alex
More comments :
For the whole licence to be declared invalid, there would have to be something that made the agreement without object or fundament, or as we say in French "sans objet ou sans cause". A contract expresses the wills of the parties to that contract. If the underlying reasons or objectives for the coming into existence of the contract are based on considerations that are illegal under French law, then the whole contract may be declared invalid. My first thought would go to the fact that the GPL isn't in French. Some courts have accepted in the past that the licence needn't be in French, but current case law suggests a completely opposite trend.
Alex
The GPL was upheld in a court of law in Germany in a case there. So there is no reason to think it will not be valid in its entirely.
This is a an intersting point. I think the FSF position is that by way of the Berne Convention and place of first publication US law applies to any interpretation of the GPL in a foreign court. Moglen says this is one of the reason that hey seek an assignment of copyright to the FSF and that they resist translations of the GPL into foreign languages or localisations of it. Put another way I think they are saying thet the world othe GPL is the world of American law. I am trying to get my head around some of this in various ways - the most recent here: http://openflows.org/~auskadi/timemachines.pdf
I have an interview (unpublished with Eben Moglen which is referred to in that document) i will try and edit it and put it on my blog asap: http://auskadiciviblog.org/blog.
Its nice to find a place where people talk about these things. Re the German decision - it was a preliminary injunction and thus meaningless to a common law person as precedent ... and as I udnerstand it in civil systems precedent doesn't eman that much anyway (I might be wrong there)
best
Martin
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