The threatened penalty is steep: Mike Decker, Managing Director of Geniatech Europe from Herzogenrath near Aachen, faces a fine of 250,000 euros or alternatively up to six months in prison if he once again distributes the free Linux operating system and violates the complicated license conditions. The verdict of the Cologne Regional Court was won by the controversial developer Patrick McHardy. Today - on March 7, 2018 - the Cologne Higher Regional Court will hear the case.

Linux primarily powers computers that control large databases and web applications. What is less well known is that countless consumer electronics devices also use Linux, including satellite receivers from the company Geniatech. Decker now freely admits that he initially slipped up when it came to complying with the Linux license GPLv2 (GNU General Public License). Geniatech had used and modified the Linux code, but failed to disclose the new source code so that other people could also benefit from it.

According to McHardy, Geniatech itself has long since remedied the breaches of the Linux license. Nevertheless, both parties are meeting in court. In his own words, Geniatech boss Decker wants to prevent individual "license trolls" from making the commercial use of Linux virtually impossible with excessive contractual penalties.

McHardy was an important kernel programmer for some time and drove the development of an important network component (Netfilter). "Many parts of the code back then were of a much lower quality than they are today, so I invested many years of working time cleaning up the code, increasing maintainability, fixing bugs and inconsistencies," said McHardy in an interview with dpa. As the task was "very nerve-wracking", after ten years of working on the project, he withdrew more and more into the background in order to concentrate more on his own development work.

Allegations of patent trolling

A number of Linux activists tell a different story: McHardy was suspended in the summer of 2016 due to his controversial warning activities. For at least four years, he had issued warnings for more than 50 license infringements, some of which were taken to court, which is said to have resulted in payments of several million euros.

McHardy calls the accusation that he is enriching himself from an open source project "relatively absurd". Unlike American law, German law does not provide for immensely high damages, and a co-author cannot claim damages per se anyway. In the case of injunctions, as in the Geniatech case, administrative fines only flow to the state. "My claims normally amount to compensation for costs, i.e. the costs I incurred for the purchase and investigation of products as well as legal fees."

However, the software developer admits that he has also demanded contractual penalties - "if a cease-and-desist agreement existed and the infringer proved to be particularly stubborn and unwilling to remedy his infringements". Here, too, the courts tend to be more reluctant to assess contractual penalties, says McHardy.

The scene has an ambivalent reaction. Some activists welcome the fact that someone is slapping companies that violate the Linux license on the wrist. However, McHardy is accused of making a personal profit from the infringements instead of donating the money to the Linux developer community.

Geniatech boss Decker points out in advance how complicated it is to fully comply with the Linux license. It is possible to fall into a trap if a small formal error occurs during the required publication of the source code and the license terms. Around 15,000 programmers have worked on the Linux project over the years. The risk of expensive warnings would be unmanageable if all developers were treated legally as if they were the actual authors of Linux. However, only Linux inventor Linus Torvalds is entitled to this status. That is why the Linux developer McHardy cannot sue, is one argument.

According to McHardy, he has offered the company an out-of-court settlement. However, he never received a reply. Geniatech boss Decker says he now wants to see the case through. "I want peace in the box."