German Court rules about liability for open source software

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11 December, 2013

On 29 November, the District Court of Hamburg decided that German software company Appwork is liable for a copyright infringing feature in their open source software project JDownloader2, created by someone else.

Appwork created JDownloader2, a tool to download and extract video files and files from file-hosting sites. The software is an open source project, which means that other developers can add functionalities to it. In June, JDownloader2 became the subject in court proceedings, because of a specific feature in a beta version of the software which enables the downloading of streaming videos. The plug-in was a contribution from an open source developer who had worked on the project before.

The Court of Hamburg decided that the plug-in represented a circumvention of an “effective technological measure” under $95a of the German Copyright Act, thereby constituting a copyright infringement. The Court issued a preliminary injunction against JDownloader2 and banned Appwork from “production, distribution and possession” of the software as long as it allows the illegal downloading of copyright protected material. Appwork filed an appeal, but the Court maintained its view. According to the Court, Appwork should have prevented that the illegal feature in JDownloader2 was offered through by prior checks of the code. Therefore, the company is liable for the copyright infringing code.

Appwork is considering their options for appeal, so there might be a chance that this decicion will be overturned in the future. If this decision will be upheld, it will have major implications for owners of open source projects. They will have to monitor all changes in the software and will have to decide whether they are lawful or not. If they don’t, they risk liability for contributions of third parties.

Sources: Wbs-law.de, TorrentFreak

Jonathan Toornstra
Jonathan Toornstra

Legal researcher

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