In addition, employers are in a tricky legal situation when their employees write open source software. In effect, they are paying people to write software that must be available for free, as required by the license. This is a latent contradiction. If you consider the employee as the author, he is obliged under the GPL to offer the source code for free.
All these points are unclear and highly controversial in the GPL.
IDGNS: Some companies, like SuSE Linux AG, have built their entire business model on the development, distribution and support of open source software, particularly the Linux operating system. Are they at risk?
Spindler: SuSE and other companies dealing with open source software separate the software, which they must provide for free as part of the license, from the services they offer for a fee, such as the CD containing the software, user manuals, patches and hotline support. There is some uncertainty in the open source community as to how much companies can charge for commercial services linked to a free product. And there is, again, a liability issue. SuSE and other open source software companies say they aren't liable for any problems with open source software. But why can't distributors and dealers be made liable?
For example, under the European Union product liability directive, even the dealer may be held liable for product defects. Moreover, it remains an open question as to whether distributors can really split up the sale into a part containing the software and another part containing the CD and the support.
IDGNS: As users, both the public and private sectors in Germany have shown substantial interest in open source. The federal government, in particular, is a driving force in the country. Should these groups be concerned about the risks of using a product for whom no one is liable?
Spindler: I would certainly think so. But if governments and enterprises choose to ignore these risks, that's their decision. The legal situation in Germany today is risky: Assuming the GPL is valid, users of open source software have no one they can sue for problems with the software.
IDGNS: Why so much talk about liability now? Open source software has been around for a while.
Spindler: Open source hasn't been discussed in the legal camp for long. The debate that has unfolded over the past 18 months or so is a relatively short time in the legal community. Moreover, the open source license is a new concept that doesn't fit totally into Germany's traditional legal framework. So new approaches and solutions have to be sought.
IDGNS: And what are your suggestions to overcome the liability issues associated with open source in Germany.
Spindler: First of all, the GPL must be written in German and take into account both German and EU law. This isn't the case today. Second of all, and most importantly, the liability clause has to be replaced or adapted. This is definitely in the interest of users, open source developers and competition.