Preliminary Injunction for Violation of GPL

A German court (the regional court in Halle) issued an order to cease and desist use of software in violation of GPL.

The defendant, a German university, had made the software available for download by its staff and students, without providing notices or source code.  The plaintiffs complained about the activity, and asked for a “cease and desist declaration with a penalty clause” which the defendant refused to sign, claiming it was unnecessary because the software had been taken down.   The order says, “According to prevailing case law of the highest court, neither the cessation of operation nor a change of production to an alternative product nor a legally binding declaration of the infringing party that it will refrain from violations in the future are sufficient to remove the risk of repeat infringement,” and therefore the plaintiff was entitled to an injunction. “Based on this case law, the removal of the software in dispute from the Defendant’s website was not sufficient to eliminate the risk of repeat infringement, neither was the declaration of the Defendant’s chancellor as cited herein above. While the removal of the software merely constitutes a de facto process that could be reversed by the Defendant any time, the declaration of the Defendant’s chancellor is lacking the required legal security which could and still can only be achieved by a cease and desist declaration with a penalty clause from the Defendant.”

The software was available under GPL version 2 or any later version.  Unlike GPL 2, GPL version 3 contains a cure provision, allowing the license to be reinstated if the violation is remedied after notice.  The court said this did not preclude an injunction:  “Contrary to the Defendant’s opinion, section 8 para. 3 of the GPL version 3 of 29 June 2007 does not preclude the asserted claim. This is the case because even though the provision grants reinstatement of the licence to the violator on the condition that the violation is remedied within 30 days of receipt of a corresponding notice, as the Chamber would expect in light of Mr. affidavit. However, this granting of the right to continue using the licence cannot be interpreted to mean that the licensor at the same time had the intention of waiving his right to demand a cease and desist declaration with a penalty clause from the (first time) violator.”

The court order provided for a fine of between 5 and 250,000 Euros (and if not paid, imprisonment of up to six months) for continuing violations, as well as payment of legal costs.