Open Source und Kartellrecht

„Open source and European antitrust laws: An analysis of copyleft and the prohibition of software license fees on the basis of art. 101 TFEU and the block exemptions“ Open source software and open source licenses (like the GNU GPL) are not only relevant for computer nerds or activists – they are already business. They are for example the fundament of LINUX, the only real rival of MICROSOFT’s WINDOWS-line in the field of operating systems for IBM PC compatibles. Art. 101 TFEU (like the identical predecessor art. 81 TEC) as part of the EU antitrust laws prohibits contract terms like price fixing and some forms of technology control. Are copyleft – the „viral effect“, the „cancer“ – and the interdiction of software license fees in the cross hairs of this legal rule? On the other side the European Union has since 2004 a new Technology Transfer Block Exemption with software license agreements for the first time in its scope: a safe harbour and a dry place under a umbrella for open source software? After the introduction (A) with a description of open source software the following text analyses the system of the European Unions competition law respectivley antitrust law and the requirements of the block exemptions (B). Starting point of antitrust analysis are undertakings – but who are the untertakings (C) in the field of widespread, independent developers as part of the „bazar organization“? To see how much open source has to fear from the law of the European Union, at the end the anti competitive and pro competitive effects of open source are totalized within the legal framework (D). The conclusion (E) shows: not nothing, but not much.

Copyright Exhaustion Rationales and Used Software: A Law and Economics Approach to Oracle v. UsedSoft

This article aims to provide courts and policymakers with an analytical framework that, building upon the traditional rationales of IP exhaustion doctrine, identifies factors which advocate for a modulation or flexibilization of the role of exhaustion in copyright law. Factors include (i) the personal features of acquirers of copies of copyrighted works, distinguishing between consumers and commercial users; (ii) whether post-sale restrictions have been adequately communicated to acquirers and have been agreed in the contract or license; (iii) the degree of complexity of the acquired goods and their prospects of productive uses and interoperability; (iv) the role of other exclusive rights in providing rightholders with indirect control over uses of the copies in the aftermarket; (v) the impact of post-sale restraints in preventing opportunism in long-term contracts and in reducing deadweight losses created by IP pricing; and (vi) the temporal scope of post-sale restraints. After setting out this analytical framework, the ECJ Judgement in Oracle v. UsedSoft is discussed.

A Qualitative Study on the Adoption of Copyright Assignment Agreements (CAA) and Copyright License Agreements (CLA) within Selected FOSS Projects

Open source software projects are multi-collaborative works incorporating the contributions of numerous developers who, in spite of publishing their code under a public license such as GPL, Apache or BSD, retain the copyright in their contributions. Having multiple copyright-owners can make the steering of a project difficult, if not impossible, as there is no ultimate authority able to take decisions relating to the maintenance and use of the project. This predicament can be remedied by centring the dispersed copyrights in a single authority via contributor agreements. Whether to introduce contributor agreements, and if so in which form, is a pressing question for many emerging, but also for established projects. The current paper provides an insight into the ethos of different projects and their reason for adopting or rejecting particular contributor agreements. It further examines the exact set-up of the contributor agreements used and concludes that smart drafting can blur the difference between CAAs and CLAs to a considerable extent, manoeuvring them into a legal grey area. To avoid costly litigation to test the legal enforceability of individual clauses, this paper proposes the establishment of an international committee comprised of developers, product managers and lawyers interested in finding a common terminology that may serve as a foundation for every contributor agreement