Validity of APL in Europe ?

[Paul Libbrecht <pa...@activemath.org>]

Dear legal experts,

living and working currently in Germany, an answer to most open-source 
licenses I have seen thus far is that "it's not valid in germany". I 
know many say it's the case for the GPL or BSD licenses but I'd like to 
hear more about this:

- was there anyone hearing about a trial in Europe with an Apache 
license involved ?

- was the APL 2.0 designed in such a way that it would apply to, say, 
France or Germany. Such statements as the guarantee-exclusion "in the 
limits of applicable law" do help it...

I know the Apache Software Foundation has a representation in 
Germany... does it have any legal status ? Would they be the trial 
parties if any ?

thank you

paul


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Re: Validity of APL in Europe ?

[Erik Abele <er...@codefaktor.de>]

On 12.07.2005, at 22:29, Paul Libbrecht wrote:
>
> Le 12 juil. 05, à 17:32, Erik Abele a écrit :
>
>>>> I know the Apache Software Foundation has a representation in  
>>>> Germany... does it have any legal status ? Would they be the  
>>>> trial parties if any ?
>>
>> The ASF doesn't have a 'representation' in Germany; there are lots  
>> of contributors from DE but nothing which would be officially  
>> registered or with a legal status. It is a 501(c)3 non-profit  
>> organization incorporated in Delaware/USA though.
>
> Wasn't there an equivalent organization in Germany ? I think I read  
> somewhere that german citizens could also take advantage of the tax- 
> non-profit-story...

Nope, tax-deductible donations are currently not possible for  
individuals within Germany (as far as I know).

Cheers,
Erik

Re: Validity of APL in Europe ?

[Paul Libbrecht <pa...@activemath.org>]

Le 12 juil. 05, à 17:32, Erik Abele a écrit :

>>> I know the Apache Software Foundation has a representation in 
>>> Germany... does it have any legal status ? Would they be the trial 
>>> parties if any ?
>
> The ASF doesn't have a 'representation' in Germany; there are lots of 
> contributors from DE but nothing which would be officially registered 
> or with a legal status. It is a 501(c)3 non-profit organization 
> incorporated in Delaware/USA though.

Wasn't there an equivalent organization in Germany ? I think I read 
somewhere that german citizens could also take advantage of the 
tax-non-profit-story...

paul


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Re: Validity of APL in Europe ?

[Erik Abele <er...@codefaktor.de>]

On 12.07.2005, at 11:56, Roy T. Fielding wrote:

> On Jul 12, 2005, at 12:13 AM, Paul Libbrecht wrote:
>
>> - was the APL 2.0 designed in such a way that it would apply to,  
>> say, France or Germany. Such statements as the guarantee-exclusion  
>> "in the limits of applicable law" do help it...
>
> Yes, but there is no way to know for sure.  The combination of
> the "applicable law" exclusion and the ability of third parties
> to offer their own guarantees where necessary should be sufficient.
> The main issue for other licenses, IIRC, was that the disclaimers
> were not valid in Germany if the software is sold as part of a
> package.  Since we provide a mechanism whereby German companies
> can take on such liability without violating our license, I think
> it will survive such a legal test.

Yes, the last assumption is correct as far as I can say (IANAL, yada  
yada).

>> I know the Apache Software Foundation has a representation in  
>> Germany... does it have any legal status ? Would they be the trial  
>> parties if any ?

The ASF doesn't have a 'representation' in Germany; there are lots of  
contributors from DE but nothing which would be officially registered  
or with a legal status. It is a 501(c)3 non-profit organization  
incorporated in Delaware/USA though.

Cheers,
Erik

Re: Validity of APL in Europe ?

["Roy T. Fielding" <fi...@gbiv.com>]

On Jul 12, 2005, at 12:13 AM, Paul Libbrecht wrote:

> living and working currently in Germany, an answer to most open-source 
> licenses I have seen thus far is that "it's not valid in germany". I 
> know many say it's the case for the GPL or BSD licenses but I'd like 
> to hear more about this:
>
> - was there anyone hearing about a trial in Europe with an Apache 
> license involved ?

None that we know of.  The Apache License is designed to avoid
litigation of any sort.

> - was the APL 2.0 designed in such a way that it would apply to, say, 
> France or Germany. Such statements as the guarantee-exclusion "in the 
> limits of applicable law" do help it...

Yes, but there is no way to know for sure.  The combination of
the "applicable law" exclusion and the ability of third parties
to offer their own guarantees where necessary should be sufficient.
The main issue for other licenses, IIRC, was that the disclaimers
were not valid in Germany if the software is sold as part of a
package.  Since we provide a mechanism whereby German companies
can take on such liability without violating our license, I think
it will survive such a legal test.

Please note, however, that such questions of "validity" have no
effect on the Apache license.  Our software is covered by copyright
law by default, so if the license were to be considered invalid
then the recipient would have no license, and thus would simply
have to trust that we aren't going to sue them for infringement,
which itself would be a meaningless act since we don't have any
revenue lost as a result of other people copying our work.

So, the short answer is that, although we have designed the
license such that it should be applicable in Europe, the past
questions of validity are only of concern to groups that actively
enforce their copyright restrictions on unwilling redistributors
(e.g., the FSF's use of the GPL to control the licensing of
derivative works).  In contrast, we just want to avoid litigation.

....Roy


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