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German Court Convicts Skype For Breaching GPL
Posted by
kdawson
on Tue Jul 24, 2007 01:52 PM
from the means-what-it-says dept.
from the means-what-it-says dept.
terber writes "A German court has once again upheld the GPLv2 and convicted Skype (based in Luxembourg) of violating the GPL by selling the Linux-based VoIP phone 'SMCWSKP 100' without proper source code access. (Original is in German, link is a Google translation.) Skype later added a flyer to the phones' packaging giving a URL where the sources could be obtained; but the court found this insufficient and in breach of GPL section 3. The plaintiff was once again Netfilter developer Harald Welte, who runs gpl-violations.org. The decision is available in German at www.ifross.de (Google translation here)."
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GPL vs. Skype Back In Court 369 comments
mollyhackit writes "Hackaday reports that the GPL vs Skype case is going back to court today. This as an appeal to the court's decision Slashdot reported last July. The original case was brought against Skype for the Linux based SMC Skype WiFi phone. The court upheld the GPLv2 and decided that Skype had not gone far enough in meeting section 3 which details how to provide the original source. This time around Skype is apparently trying to argue that the GPL violates anti-trust regulations."
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Damn (Score:4, Funny)
Server Error? (Score:4, Funny)
Parent
Re: (Score:3)
Re:Damn (Score:5, Interesting)
Parent
Re:Does GPL copyright expires? (Score:4, Insightful)
I take that partly back. It more completely passes into the public domain that a vast majority of software, because the source is easily available (copyright expiration wont make companies release the source).
It will (of course) be many years before any software copyrights expire (here in the States at least).
Parent
Correct terminology (Score:5, Informative)
Re:Correct terminology (Score:4, Insightful)
Parent
Re:Correct terminology (Score:5, Insightful)
Parent
Just out of curiosity (Score:4, Insightful)
Parent
Re:Only if copying is not fair use (Score:4, Informative)
Parent
Re:Only if copying is not fair use (Score:5, Informative)
It's not fair use, because copies of software that are made for the purpose of using it are not covered by copyright in the first place. The law is explicit about this [cornell.edu]:
In short: It's not fair use (that's a different set of exemptions), but it is legal.
Parent
Re: (Score:3, Informative)
Re:Correct terminology (Score:5, Funny)
Noone would be convicted of "breaching the GPL". The GPL is not an EULA. If you violate the terms of the GPL, you are (re)distributing without a license permitting you to do so (since the GPL, which you violated, is the only thing that gives you permission to do so), which is a copyright violation, not a GPL violation. I wish articles would get the specifics right.
You win today's "Pedant of the day award." Look for your certificate in the mail.
Parent
Re:Correct terminology (Score:4, Funny)
but you don't get a certificate. We're kindof assholes like that.
Parent
Re:Correct terminology (Score:5, Insightful)
On the contrary, a standard legal action against someone not in compliance with the terms of the GPL would be a simple copyright infringement case; the onus is on the defendant to show that they had a valid license (and met its terms).
Parent
Re:Correct terminology (Score:5, Insightful)
The court must "test" the GPL if the defendant claims that he accepted the terms. At that point the judge will attempt to decide whether the defendant did indeed keep up his half of the bargain, potentially restricting the power of the GPL agreement where local laws say otherwise.
The GPL is a fairly air-tight design, but there's nothing erroneous about its need for court testing. A judge can (and will!) strike various parts of the agreement if he finds them to be in conflict with either the law or the intent of the agreement. As a result, it's difficult to legally "prove" that a given type of agreement will hold up in court unless either that same agreement or a similar agreement is tested. The GPL has had sufficient legal testing to show that it will hold up in court.
If I'm not mistaken, your confusion stems from section 5 of the GPL, which explicitly provides for the fact that no proof of an agreement takes place. According to the GPL, you don't have to accept it to use the software. It falls back on standard copyright law in that case. Thus when an infringer is identified, he faces a double-edged sword. Does he claim that he did not accept the GPL, in which case he's on the hook for copyright infringement? Or does he claim that he did indeed accept the terms of the GPL, in which case he's on the hook for (I'll phrase this carefully just to annoy the "contract vs. license" folks out there
The GPL is an interesting experiment in using a legal loophole as the foundation for a distribution agreement. This case provides further evidence that the concept works as well in practice as it does in legal theory.
Parent
Re:Correct terminology (Score:5, Insightful)
Hey, we're having a legal discussion here -- pedantry is necessary!
Parent
Re: (Score:3, Insightful)
Re: (Score:3, Interesting)
Right, we need to protect copyright at all costs! Maybe insert some DRM to protect us from evil capitalists!!
I wonder how many slashdotters would agree that the idea to limit copyright to 12 years or so means that linux will be put in the public domain for anyone to do whatever they want, and to hell with the gpl.
Not trying to troll, but its funny to see people quote copyright law line and verse when it serves them.
Re: (Score:3, Insightful)
Conflict and Chaos in the Hive Mind! (Score:4, Funny)
Conviction for copyright violation - Bad!
What's a loyal drone to believe anymore??
Re:Conflict and Chaos in the Hive Mind! (Score:5, Informative)
The GPL is permissive, and thus turns the usual function of copyright on it's head.
In other words, usually when people violate copyright it's through an act that increases the spread of the information, and prosecuting them for it would restict that spread. In contrast, when people violate copyright by failing to abide by the GPL, they themselves are restricting the spread of the information and prosecuting them restores it.
If one (e.g., a "loyal drone") consistently believes that spreading information is good and restricting it is bad, there is no contradiction.
Parent
Re: (Score:3, Insightful)
The GPL is permissive the same way the 13th amendment is permissive. Both prevent you from taking away the rights of others.
What I don't get is why is putting the source on the internet not good enough?
Not everyone has access to the internet. Had they included a written offer to send the source code by post for a reasonable shipping charge they'd probably have been fine.
Re: (Score:3, Informative)
No, because under copyright law, you never had that right in the first place. The GPL gives you *more* rights than you had, it just doesn't give you the right to not give the same rights to others.
Re: (Score:3, Insightful)
What drives innovation is a desire to capture a particular market share for a demand, in effect providing a new supply stream for an existing demand, or hoping to create demand due to a new supply stream for a new product or feature.
In
Misleading or incomplete summary. (Score:5, Informative)
Source Code (Score:5, Informative)
Can also check out this link for more info here [wifiphone24.com]
Holy Larva Batman! (Score:3, Funny)
It's a wonder why Microsoft hates the GPL, Balmer is afraid of GRUB(s)
The interesting part (Score:5, Interesting)
with the phone that contained URLs to the GPL-
license and to the source code . The articles do
not make any statement on whether the source code
contained all modifications, but they do not claim
otherwise.
The court decided that providing only an URL to the
license was not enough and that the whole license
should have been included in printed form.
So far, so good. Now the interesting part is that
according to the judge, providing a link to the
source code is only acceptable for software that
is provided on the internet. For software that comes
preinstalled, the source must also be delivered with
the device.
This decision seems extremely strange to me. It is
not what I read in the GPL v2. Here is the relevant
part:
3. You may copy and distribute the Program (or a work based on it,
under Section 2) in object code or executable form under the terms of
Sections 1 and 2 above provided that you also do one of the
following:
a)
b) Accompany it with a written offer, valid for at least three
years, to give any third party, for a charge no more than your cost
of physically performing source distribution, a complete
machine-readable copy of the corresponding source code, to be
distributed under the terms of Sections 1 and 2 above on a medium
customarily used for software interchange; or,
c)
Re:The interesting part (Score:5, Insightful)
I think the judge looked at the paragraph a bit further on in that section where it talks about providing access to the source as a download from a server, and noted that that case is explicitly allowed only when the software itself is also distributed as a download. That led him to the conclusion that clause B that you quote, when it talks of "medium customarily used for software interchange", means exactly what it says: an actual copy on some storage medium, logic being that if it allowed downloads from servers then it wouldn't have been neccesary later to explicitly allow downloads from servers. Combine that with failing to include the license text when the license says plainly in section 1 that you must include a copy of it's text and the judge's decision doesn't seem unreasonable.
And I know the issue of downloads of source has been discussed, and IIRC the FSF's position is that it's not acceptable on it's own. Network servers can be taken down, files on them can be removed, some recipients may not have Internet access but none of those cases lifts the obligation to provide source code. The only way a distributor can guarantee he'll always be able to meet that obligation is to be prepared to provide source on a physical medium. The case of providing downloadable source for downloadable software was actually viewed as falling under 3a, not 3b, that is source code being provided along with the software itself, which makes a world of difference in the distributor's obligations.
Parent
Re: (Score:3, Interesting)
Using the same mechanism as the RIAA to uphold freedom is good.
Using the same sore-winner attitude as the RIAA and punishing people for the heck of it is bad.
Umm I think they misread one part (Score:3, Informative)
Rough translation (but better than google):
"Later a note was included with the device, which said it used GPL software and a URL where the source code is available - but this was not enough for the court. The GPL only permits this for software that is delivered over the Internet."
Doesn't that get covered by 6 b) 2):
"6. Conveying Non-Source Forms.
You may convey a covered work in object code form under the terms of sections 4 and 5, provided that you also convey the machine-readable Corresponding Source under the terms of this License, in one of these ways:
(...)
b) Convey the object code in, or embodied in, a physical product (including a physical distribution medium), accompanied by a written offer, valid for at least three years and valid for as long as you offer spare parts or customer support for that product model, to give anyone who possesses the object code either (...) or (2) access to copy the Corresponding Source from a network server at no charge."
Or maybe it didn't come as a permanent offer, in which case they might be talking about 6 d):
"d) Convey the object code by offering access from a designated place (gratis or for a charge), and offer equivalent access to the Corresponding Source in the same way through the same place at no further charge. (...)"
No conviction (Score:3, Insightful)
A conviction is for criminal court. Copywrite law falls under civil law. No one from Skype is going to jail and no one is going to pay a huge fine to the government. However, the organization that won this case could potentially get a tidy sum.
Let's just pile onto the inaccuracies of the summary for this article. Let's hear it for inflamatory, add-pumping summaries!
Hm, no a german court did _not_ "upheld" the GPL (Score:3, Interesting)
What me rely wonders is this wording A German court has once again upheld the GPLv2 .
No! A german court did not upheld the GPL. No court is interested in the GPL. the court honoured copyright law. The authors of the code in question are the copyright owners. The company distributing the code is not a copyright owner. The license is completely irrelevant.
Notpicking mode on:
A license could be void if it contained illegal terms, like: you agree to hand over your first born son, and his first born son and also his up to the 17th generation to follow to (insert your name here)
In this case the license would be void. Not copyright! You still had no right whatsoever to distribute the code / IP of the legal owners.
The court did not uphold the GPL. It only decided that Skype violated the GPL and in doing so violated copyright law If you violate a BSD or MIT license you violate copyright law as well.
To uphold a license you would need to challenge the legal-ness of the license. So instead of suing Skype for breaking copyright law you would need to sue the author over using an illegal license. However there is no real applicable law here. You could construct a case probably by having a license that also encourages murder and rape
angel'o'sphere
Skype was NOT convicted (Score:3, Informative)
They convicted SMC, who makes a Skype phone, of the GPL violation because they didn't include the source code with the phone. NOT skype
how can every slashdot mod and user be completely wrong?
Re:Slashdot Hypocrisy (Score:4, Funny)
In any case you have completely misrepresented peoples positions and conflated different groups.
Don't look now but I think your strawman is on fire.
Parent
Re:Slashdot Hypocrisy (Score:4, Funny)
Parent
Re:Slashdot Hypocrisy (Score:4, Insightful)
What do you mean? Opposing the RIAA means supporting the user's freedom. Enforcing the GPL also means supporting the user's freedom. There is no contradiction.
Parent
Re:Slashdot Hypocrisy (Score:5, Insightful)
In a perfect world, we wouldn't need the GPL, but we don't live in a perfect world. The GPL attempts to use the (imperfect) legal tools that do exist (read: copyright law) to accomplish its goal of access to source. The spirit behind it has little to do with copyright.
Parent
Re: (Score:3, Insightful)
What we're opposed to are the draconian enforcement and perpetual lengthening of copyright expiration.
So...no. I don't see where your argument has solid ground to stand on.
Re:Slashdot Hypocrisy (Score:4, Insightful)
I assume you're talking about the benefit of copyleft (i.e., enforcing the sharing) versus plain permissive (e.g. Public Domain). The thing is, plain permissive really isn't all that much worse than copyleft. In contrast, (from the RIAA's perspective) public domain is very much worse than proprietary. So, having a longer copyleft term doesn't benefit the Free Software community nearly as much as having a longer copyright term benefits the RIAA.
Besides, old music remains valuable to society. For the most part, old code doesn't.
For both of those reasons, it is unnecessary for Free Software to have long copyright, and thus most Free Software advocates oppose copyright extensions. The fact that the RIAA et al. abuse copyright only confirms that position more.
Parent
Re: (Score:3, Insightful)
Assuming Linus lives to at least 70 (born in 1969), the Linux kernel will not be released into the public domain for another 101 years or so. And that's only the parts he wrote. I think it's safe to say that the FOSS community will not be harmed by the release of what will then probably be an ancient and rather quaint bit of software from the turn of the la
Re:Slashdot Hypocrisy (Score:5, Insightful)
First and probably the most important is that not everyone who dislikes the **AAs voice their opinion for the GPL and vice versa. This means that you will see people vocal about one and not the other and when putting it all together, you see the static noise level to be about the same but totally neglect the fact that it is coming from different sources.
Second, And probably just as important, Most of the anti **IA people I speak to are in the position because of the what and how RIAA and the MPAA are handling things not because of their right to handle them. When they run threats of legal action in order to extort a settlement from the people who would seem to have the most difficulty defending from it, something is wrong. It would seem that if protecting against copy right infringement would be important, it would be important to go after everyone doing it and not just the people who stand a chance of having a successful defense.
I don't know of the GPL people going after widowed grandmothers who don't even own a computer and make them spend hundred if not thousands of dollars to prove that. I don't know of any GPL people falsely accusing people of infringement by infecting their computer and snooping around. I don't know of GPL people going around and writing virus and jamming networks with infect material in order to extract revenge on people and ruin their computer install because you used a legal service to do something legal.
If and when they start doing stuff like this and everything else the **IAs are doing, I will be just as vocal against them as some are for the **IAs. As it is, I don't usually comment in the RIAAs or whatever unless it is something really bad. So don't confuse the noise level on both as being from the same people or for the same reasons, they aren't.
Parent
Re: (Score:3, Insightful)
We also (And I think I speak for everyone of favor of copyrights 'round here) would like to see copyr
Re: (Score:3, Informative)
Re:Beginning of the end for open source? (Score:5, Insightful)
"Holy shit, someone's actually enforcing GPL v2! Open Source is going to die!" is, excuse my language, but fucking retarded. Find something else to blow up about. I hear the sky is falling.
Parent
Re: (Score:3, Informative)
'for your gains' is not a required condition.
Re: (Score:3, Informative)
The court said including a website address to where the source could be downloaded wasn't good enough. I'd like to know why that wasn't good enough. Is it only because the text of the GPL wasn't included?
This doesn't look like a win for the GPL. This looks like a major pain in the ass. I didn't even know that distributing a copy of the GPL was a requirement
Re:Hooray for Harald! (Score:5, Informative)
Wow, did you drink some SCO FUD? Copyrights are never nullified because of lack of enforcement, and I dare you to find an example. Not enforcing them may limit your ability to collect damages, but at any time you can send an injunction to make them stop.
What's needed is enforcement of copyright law:
506. Criminal offenses
(a) Criminal Infringement.
(1) In general. Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed
(A) for purposes of commercial advantage or private financial gain;
2319. Criminal infringement of a copyright
(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1)(A) of title 17
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
If you're using a substantial amount of GPL'd code beyond the rouge developer taking code, that should be enough to know you're willfully infringing. Being a for-profit company should be enough to prove "for commercial advantage". At which point they should be strung up on criminal charges and sent to jail like with SOX regulations. That's how it should be, note there's no minimum amount to make (3) go into effect and send them away for a year, even at a $0 "retail value" as long as you can prove *they* earned money on it.
Parent
Re: (Score:3, Informative)
Certainly.
Provided that you (the copyright holder) generate them (by running the compil