Software that has been placed under an open source license can usually be used freely by anyone. However, the open source regulations also stipulate certain obligations for the user. You should therefore never be too careless when using free programs. This is shown by a case that the Regional Court of Halle had to decide (Regional Court of Halle, judgment of 27.07.2015 - 4 O 133/15).
At issue: One institution made software available for download on its website for its own employees and students. This made it possible to use their own end devices via the institution's own WLAN.
The software was licensed under the open source license GPL. These license conditions stipulate that the person who makes the software available, e.g. via data networks, must fulfil several obligations: He must, for example, also make the respective license text accessible, and he must make the complete corresponding source code accessible free of license fees or make it available on a customary data carrier at a cost not exceeding the cost of producing the copy. None of this was done in the present case.
The author of the software then demanded an injunction against these infringements of the GPL, which the warned institution refused to comply with. In the preliminary injunction proceedings, the regional court ruled in favor of the author.
The case to be decided was special in that it could be established beyond doubt that the plaintiff in the injunction was the author of the software. With many open source solutions, numerous authors will have joint rights to the software, which makes it more difficult for each individual to enforce their rights.
The court considered the violations of the GPL to be an infringement of the author's rights, which could only have been remedied by issuing a cease-and-desist declaration with a penalty clause. This is not affected by the fact - and this is also important - that GPLv3 in section 8.3 stipulates that the user may continue to use the software despite an infringement if he remedies the infringements within 30 days. This is because, according to the court, even the subsequent creation of a GPL-compliant state does not change the initial infringement.
The court therefore leaves the general principles on the risk of repetition of copyright infringements unaffected. These state that a single infringement of the author's rights indicates the risk that further infringements will occur. According to recognized case law, this risk of repetition can only be eliminated by submitting a sufficiently punitive declaration to cease and desist.
Violations of open source license terms are very common. This also applies in particular to companies that integrate open source components into their own software solutions without providing the necessary information. This is because provisions on the obligation to provide information on the applicable open source license terms and the making available of the source code are contained in numerous sets of rules. However, experience shows that these are not always complied with. The judgment of the Regional Court of Halle shows that such a procedure is not without risk and can result in liability cases. Caution is therefore advised here.
