Decision of the Hamburg District Court of July 8, 2016 (court ref. 310 O 89/15) on copyrights of a software developer on Open Source Software (appealed)
The Court found that a software developer, who was involved in the Linux operating system, is, at best, entitled to an adapter’s copyright on Linux programmes (a so called adapter’s copyright according to § 69c No. 2 Sec. 2, § 3 of the German Copyright Act), but not a copyright as a developer. The Court set rather high requirements as to the burden of proof for claiming adapter's copyrights in court, which the plaintiff (according to the opinion of the court) did not meet. The important question whether incorporating a modified Linux programme into proprietary software and/or the interaction of modified Linux programmes with proprietary software has to be regarded as an infringement of the licence terms of GPLv.2 (General Public Licence, version 2) was not decided.
The German decision also attracted attention in the US software community. The defendant was a US manufacturer of a downloadable software which enables the user to run different operating systems in parallel on the same computer. According to the plaintiff, the defendant should be no longer allowed to offer this software in return for payment and without disclosing the software source code, as this would infringe upon the terms of GPLv.2 which apply to the complete software of the defendant. The software in question uses in parts the Linux operating system, which is under strict copyleft licencing of GPLv.2.
The court dismissed the action: the court found that the plaintiff's legal position could be only based on an adapter's copyright, which is a rather limited legal position. Moreover, the plaintiff did not sufficiently substantiate and prove which parts of the Linux programme he claimed to have modified and, further, in which manner and to what extent these modifications are protected under copyright and to what extent those modified parts are used by the defendant. In particular, the court said it is not its job to pick the relevant parts out of the evidence. Consequently, the court left undecided whether and under which circumstances the interaction of proprietary software programme components with Open Source Software parts is an infringement of the licence terms of GPLv.2.
The decision of the Hamburg District Court is rather disappointing regarding to the core question of the process, namely whether the licence terms of GPLv.2 apply to the complete software of the defendant and whether the defendant should have offered the complete software for free and disclosed the complete source code. All existing controversial questions in the area of Open Source Law about the scope of the copyleft of the licencing terms of GPLv.2 regarding the operating system Linux, in particular in the case of a connection or interaction with proprietary software, also remain unanswered. Furthermore, it is debatable whether the court set rather excessive requirements as to the burden of proof in the current case, in particular regarding the existing problems for providing evidence for (modified) software. Obtaining an expert opinion or hearing from another software developer – as proposed by the plaintiff – could have helped the matter but was refused by the court.
The plaintiff has appealed to the Higher District Court of Hamburg (court ref. 5 U 146/16). A decision cannot be expected before the end of 2017.
This court decision was presented by Müller Schupfner & Partner, Attorney at Law Marie-Christine Seiler, before the Open Source Committee of Intellectual Property Owners (IPO), an US trade organisation of IP owners, on March 16, 2017.