The plaintiff in a legal dispute before the Higher Regional Court of Karlsruhe is self-employed in the field of search engine optimization and uses, among other things, the WordPress content management system. This is a system for operating websites. It is licensed under an open source license. This license grants anyone the right to use, modify and distribute software, provided that the changes themselves are placed under a corresponding open source license, and makes it clear that the enjoyment of the free license is linked to the resolutive condition that changes are also passed on in open source form.
Defendant threatened self-employed person with publication of his theme
Based on WordPress, so-called themes can be used, which – technically simplified – are construction kits or templates. A theme provides, for example, a layout and graphics, which are then supplemented by the specific content – e.g. the data and offers of the website operator. The plaintiff distributes such a theme commercially. He had it developed by an agency and a developer according to his ideas. Both the agency and the current developer granted the plaintiff exclusive rights of use to the source code of the software.
In 2019, the later defendant contacted the plaintiff by email and “threatened” him, referring to the open source license, that he would place the commercially distributed theme on a platform for open source software. The later plaintiff then demanded that he submit a cease-and-desist declaration with a penalty clause. However, the person concerned rejected this in its entirety. After further correspondence and differences of opinion, the matter finally ended up before the Karlsruhe Higher Regional Court.
Karlsruhe Higher Regional Court considers injunction action justified
The plaintiff demanded that the publication be discontinued and invoked his status as the author of the theme. Although it is generally necessary for the plaintiff to have provided an independent programming service, the court considered it sufficient that the programmers had granted him the exclusive rights of use. In its ruling of January 27, 2021 (A.z.: 6 U 60/20), it therefore declared the claims to be well-founded.
According to the court, co-authorship of the theme, as is the case with open source products such as the well-known Linux operating system, only exists if there is a corresponding natural will to act on the part of the authors involved in a uniform creation. In the case of staggered programming as in the present case, a subordination of the subsequent programmers to a common overall idea could not be established.
License conditions apply only to the rights of use of the original program
He is not prevented from asserting this claim even if the basic WordPress program is an open source product under an open source license. This is because his own copyright to the further developments created is independent of the original programmer’s copyright to the basic program.
According to the judges in Karlsruhe, the plaintiff has not lost his rights either, in particular the integration of WordPress under the open source license cannot be considered a waiver of copyright or exploitation rights. This is because the license conditions only apply to the rights of use to the original program, not also to the rights to the modified program created by the adaptation. It cannot be assumed that by editing the original program, the editor has consented to the licensing of the modification under the original open source license.