Re: German-GPL victorious in Frankfurt district court

[Merijn de Weerd]

On 2006-09-23, David Kastrup <dak@gnu.org> wrote:
> Once the distributor has in some manner acquired a _right_ to get the
> material licensed to him, he can protest any clauses that that are
> "unfair" in as much as they can't be reasonably expected as a part of
> the licensing obligation.
>
> However, the commone GPL usage case does _not_ involve a right to
> licensing, but rather a licensing _gift_.  Take it or leave it.

Under German law, a gift is a contract. One party agrees to give,
the other agrees to receive: bingo, contract.

Therefore under German law, once I accept the GPL terms, I have
a right to redistribute GPL-licensed software. However, I can
protest unreasonable or illegal terms in the contract and have
those declared null and void.

That does *not* mean the GPL as a whole gets declared void
and I lose my license. It means the judge takes his big black
marker (like the AC said on Groklaw) and strikes out those
parts of the GPL. I'm still bound by the rest.

> But in the normal case, where there is no contractual relationship
> between licensor and licensee, or any obligation of licensor to
> licensee, this argument does not fly.

Possibly. The GPL is not a simple gift as in "here is my code,
go ahead, distribute it". There's lots of strings attached to 
that particular gift. One of those strings can be held to be
an illegal or unfair string, and the judge will throw it out.

Like the AC said, the GPL is not a package deal.

Merijn

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