The plaintiff develops open source software (FreeadhocUDF) and licensed this according to the GNU Lesser General Public License (“LGPL”). The defendant sold this software but failed to abide by the licence requirements in relation to its product “WISO Mein Büro 2009”. In particular, it failed to specify the name of the developer, did not provide the text of the LGPL and did not make the source code available. In accordance with prior case law (see only Munich District Court I, judgment of 19 May 2004 - 21 O 6123/04 or Berlin District Court, judgment of 21 February 2006 - 16 O 134/06), the court held that this conduct amounted to an infringement of the software developer’s user rights under copyright law. It pointed out that in this regard it is immaterial whether the software performs a function within the product “WISO Mein Büro 2009”. The conduct that is relevant for copyright law purposes is exclusively its pure implementation as such. However, the findings that the court went on to make in relation to the plaintiff’s claim to damages are of particular interest. Thus, in what was – to our knowledge – the first decision of this nature worldwide, the court held that a developer of open source software may claim damages according to principles analogous to those applicable to licences, irrespective of whether the right to use the open source software is granted free of charge.
Problems may arise solely in relation to the calculation of the quantum of damages. This is because the plaintiff itself only developed part of the open source software, and therefore the evaluation of its share is of decisive importance in calculating damages. In any case for open source software, which is generally speaking distributed free of charge, there is a valid question as to whether any damage should be calculated according to the licence analogy. Indications as to the calculation of damages could only be derived from the “dual licensing” model, under which Open-Source-Software is also licensed in parallel for consideration.
Peter Huppertz, LL.M.
Fachanwalt für Informationstechnologierecht
Hoffmann Liebs Fritsch & Partner
Kaiserswerther Straße 119
Telefon: +49 (0) 211 51882 – 197
Fax: +49 (0) 211 51882 – 220