Open Source Software: Preliminary injunction based on violation of GPL-3.0

There have been various occasions on which JBB lawyers have helped clients enforce their rights under the GPL-2.0 in court (a list of the most important court rulings on free and open source software in Germany can be found here). Recently, the decision of the LG Halle (LG Halle, decision of July 27, 2015) was added to this list of court rulings. In its decision, the court in Halle had to rule on breaches of the GPL-3.0 license conditions as the first court in Germany.

The court confirmed the plaintiff’s claim to a cease and desist order, which it issued, as the defendant, a higher educational institution in Germany, refused to sign a cease and desist declaration with penalty clause after it had received a written warning form the plaintiff. The court ruled that the defendant had made the software, which is protected by copyright in favor of the plaintiff, publicly available, as she had offered it for download to its students and employees. Although the GPL version 2 as well as version 3 granted the necessary right of use in principle, the defendant had ceased to hold these rights, as he neither provided the license text nor the complete corresponding source code with the software.

If the software was licensed under GPL-3.0, the court held, Section 8 subsection 3 GPL-3.0 would reinstate the license permanently under the conditions that the violation is cured within 30 days after receipt of the first notification of the violation by some reasonable means. This, however, only granted the defendant a second chance, whereas the plaintiff’s right persisted to prevent further infringements even after the first infringement of its kind. Section 8 subsection 3 GPL-3.0 did not eliminate the plaintiff’s right to a declaration to cease and desist with penalty clause, the court held, so that the danger of reoccurrence, which under German law is indicated by the first infringement, subsisted if the defendant did not declare to cease and desist such use.

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