[LAD] how i think the gpl works under german jurisdiction

standard ianal disclaimer applies.

at the risk of starting another zillion-mail thread, here's how i
understand the gpl to work under german laws (which should be almost the
same in most other countries):

a) there is a difference between the license and the copyright. what
many people fail to grasp is that the original copyright holder (if it's
actually a single person or closed group) is not bound by the license -
s/he can choose to distribute the product under any terms s/he sees fit.
the license applies only to people re-distributing the product.
so it does not make sense to accuse an original author of not providing
makefiles, scripts etc, for original code. specifically so in the light
of the famous "AS-IS", "WITHOUT FITNESS FOR ANY PARTICULAR PURPOSE"
paragraph.
ripping out makefiles from re-distributed code is another issue.

b) there is a difference between license and evangelist lingo and the
actual *contract* that is agreed upon by licensor and licensee.

the GPL cannot be viral in the sense that any code that incorporates GPL
automatically becomes GPL as well.

what happens instead is this:

* you use GPL code in your product so as to make your product a "derived
work".

* by including the GPL code, you are accepting the GPL (as stated in the
license). the original author has issued a standing offer for a contract
(the GPL), and your use of the code indicates your acceptance. thus, a
contract is formed between the original author of that code and yourself
(through "konkludentes handeln" or "implied agreement by action" in
german legalese, no signing of papers or verbal exchange needed here).

* you fail to comply with the GPL by not releasing your product under
the same terms.

* this means you are violating the license of the included GPL code and
are re-distributing the included GPL code without permission.

so this is a *breach of contract*, and anything that follows is about
the original author's copyright, not your own, or how you license your code.

you are now liable to a copyright infringement suit, a cease and desist
and possible damages.
from this point on, there are two ways to remedy the situation:

* you can stick to the original contract and comply with the GPL in the
future. since this happens to mean your code has to become GPL as well,
it is what causes the myth of the "viral" GPL.
* you can rip out the GPL code and continue to use your old licensing
terms (after you have settled the infringement suit).

all this means that if somebody uses GPL'd code without releasing under
GPL him/herself, s/he is in breach of contract with the original
author(s). it *does* *not* *mean* that you can now assume the entire
package is up for grabs under the terms of the GPL.

best,

jörn

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Received on Fri Aug 7 04:15:03 2009