McHardy withdraws injunction request – Is this a victory for open source?


After the withdrawal of request for interim injunction in Cologne Higher Regional Courton March 7, can users of open source software breathe a sigh of relief or does this withdrawal give rise to false hope?

When Cologne Regional Court issued an injunction in October 2017 (case no. 14 O 188/17) it should have been clear that infringing licence conditions for open source software carries dramatic consequences. Then at the oral appeal hearing before the Cologne Higher Regional Court on 7 March 2018, the claimant, software developer Patrick McHardy, withdrew a request for an interim injunction, which was issued in the first instance to avoid a decision with negative implications for him.

Risks of non-compliance with open source licences

Does this withdrawal reduce the legal risk from individual developers who are already described as "copyright trolls" in the USA?

McHardy claims to have copyright components in the Linux operating system. As a result, he obtained an injunction by the Cologne Regional Court, which prohibited the defendant in this case from making a number of software products accessible to the public, and from distributing them without observing GNU General Public License conditions. This prohibition by the regional court demonstrated that non-compliance with open source can have serious consequences, and can result in distribution bans, interruptions in production, and even fines.

Remarks by Cologne Higher Regional Court results in withdrawal

After the ban by the Cologne Regional Court, the defendant achieved a partial victory in its appeal in the injunction proceedings. At the oral hearing, the 6th Civil Senate of Cologne Higher Regional Court pointed out a number of factual circumstances, which would have led to a successful appeal and the lifting of the ban.

Firstly, the court questioned McHardy's co-authorship in the Linux kernel, as it was already developed before 2004 when the claimant joined the development, created by Linus Torvalds. Even today, Torvalds and Linux developers decide which new developments will be included in the Linux kernel. Hence, it is doubtful that anyone, who did not work on the basis of a common idea from the beginning can claim co-authorship of it. The court also expressed doubts concerning McHardy’s claims that he was a co-author of the Netfilter component. The Netfilter project started in 1999. McHardy didn’t join the team until 2004.

The court also did not see the possibility that he possessed general rights as an editing author. Even if the degree of protection for computer programmes is high, the claimant was not able to substantiate that he was responsible for material parts of the development, nor was he able to identify what these material parts were.

The claimant’s conduct could also constitute an abuse of process. There is evidence to suggest that monetary interests motivated him. According to the defendant and the party leading the appeal, the claimant was pursing legal action against at least 38 companies, and in one case had demanded contractual penalties of EUR 1.8 million. He is already believed to have received more than EUR 2 million. Because the claimant provided a sworn affidavit about this in the oral hearing on 7 March 2018, the court did not want to rule on this point.

Due to the remarks of the Court, the request was withdrawn, so the prohibition by Cologne Regional Court is no longer in effect. It is, however, doubtful that problems concerning non-compliance with open source have been solved.

The open source community takes compliance into its own hands

Despite this partial victory, the basic question of how to achieve sufficient open source compliance still remains. Even in the case presented here, the claimant can still initiate main proceedings and prove alleged co-authorship through further submissions and expert evidence. Complaints about a lack of open source compliance are increasing as well.

For some time now, the open source community has been critical of this claimant’s approach. The community prefers to take enforcement of open source licences into its own hands, and has previously taken action against licence infringements. Since no applications today are developed without open source software, compliance with licence conditions is becoming increasingly important. We advise the use of standardised analysis methods, and to develop appropriate compliance guidelines. Many companies have already created this capacity in their organisations.

For more information on this issue, and strategies to mitigate the risks of litigation, please contact Markus Deck and Philippe Heinzke.