Die erzwungene Gegengabe Fragen des Internationalen Privatrechts und der Inhaltskontrolle bei der kommerziellen Verwertung von Open Source Software nach der GNU General Public License Version 3

This article focuses on the viral effect (strong Copyleft) of Open Source Software licences under the new GNU General Public License Version 3 (GNU GPL v3). Based on the principle of free access for everyone, GNU GPL v3 requires that the user's future additions, developments or derivative works shall be governed (i.e. infected) to a certain extent by the Copyleft terms and thus must be open and accessible to all subsequent users and kinds of use free of charge. This viral effect conflicts with the interests of commercial users, who regularly use commercial software license agreements imposing royalties and declaring their technology confidential know-how (trade secret). This conflict, i.e. the question whether the commercial use and distribution of Open Source Software in commercial software products infringes the rights of the right holders, raises copyright and anti-trust related issues of market organization that have not yet been ruled upon by the Federal Court of Justice. There are three possible lines of argumentation that can help to strike the balance between the conflicting interests: the doctrine of testing general business terms (Allgemeine Geschäftsbedingungen) under the German law of contracts, the requirements and limitations inherent to German copyright law, and German private antitrust law, with the latter being prevalently determined by EU Regulations. Not only private antitrust law is dominated by economic aspects of market organisation but – increasingly – also copyright law and the rules of conflict of laws. The author comes to the conclusion that convergent lines of argumentation should be considered. Further conclusions are: – Extending the doctrine of disclosure of the source code and the prohibition of license fees to future adaptations or additions by the (commercial) user of Open Source Software, regardless of that user's copyrights (strong Copyleft, viral effect), raises concerns from a market orientated viewpoint as a 'forced counter-donation' (exclusive grant back). Methodically, these concerns arise when the terms of the agreements are being tested against the provisions of German copyright law or against German private antitrust law. These concerns are aggravated, if the licensor of the Open Source license is engaged in commercial activities or if he is already vested with market power. – When putting the GPL GNU v3 license terms to test, an economic approach, focusing on aspects of market organisation is essential. The GNU GPL terms provide for the principle of direct licensing of copyrights with exclusive effect erga omnes. Therefore, German private international law allows connection either to the law of the country for which protection against infringement of copyrights is claimed (lex loci protectionis) or according to the conflict of laws principles of private antitrust law. It remains to be seen, whether and to what extent the courts will also refer to the doctrine of testing general business terms according to sections 305 et seq. German Civil Code when assessing the license terms of the GPL GNU v3. Besides, it is yet unclear how far aspects of private antitrust law will be relevant in addition to aspects related to copyright law. In the future, a harmonization of the different approaches with regard to the achieved balances of interests seems necessary. – Section 2 German Act against Restraints of Competition (GWB), article 101 TFEU and the principle of exhaustion of the distribution right laid down in section 17 of the German Copyright Act refer to the common market. Copyright law sets the framework for the allocation (and exclusion) of author's rights and usage rights, which cannot be achieved without regard to considerations of market policy. In this regard, private antitrust rules governing licensing contracts connect to intellectual property law. Determining the applicable law according to the applicable conflict of laws rules must take the unlimited range of the Inter