Damages for GPL Infringement

The offering of open source software in breach of the licence obligations under the GPL constitutes a copyright infringement. In the view of the LG Bochum, the rights holder is entitled to both information and damages claims on the basis of licence analogy.

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A university had operated its own WLAN network in order to enable students, staff and guests from other universities to access the Internet and intranet. In order to use the WLAN, software was required. For this purpose, the university offered open source software licensed under the GPL for download and, contrary to the terms of the licence, neither provided the licence text nor the source code.

The rights holders made later versions of this software available only against payment, which was based on the size of the corresponding institution. Following the cease-and-desist letter from the rights holders, the university issued a declaration of discontinuance but refused to provide the information required for the calculation of damages as well as the payment of expenses and damages.

Court decision: GPL infringement establishes damages claims

WithUrteil vom 03.03.2016 – I-8 O 294/15 the LG Bochum confirmed the information and damages claims of the rights holders.

A violation of copyright was to be seen solely in the fact that the university made the open source software publicly accessible without the licence text and source code, which constituted a breach of the licence terms.

Since the breach of the GPL conditions automatically led to the expiry of the licence, in the view of the court there was an unauthorised use of the software by the university. In this context, the court confirmed that a claim for damages exists on the basis of licence analogy even where lawful use of the software is possible free of charge.

Conclusion

The possibility of using software on the basis of an open source licence does not automatically lead to a waiver by the rights holder of their copyright claims. This is particularly relevant where the corresponding software is used in breach of the licence terms. A claim for damages is not excluded even in the case of lawful free of charge use of software.