GPL vs. Skype Back In Court

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."

Violates Anti-Trust??

[NoSCO (858498)]

Perhaps if they code something off their own back then rather than leech off the work of others, there would be no problem. Honestly, the nerve!

Re:Violates Anti-Trust??

[sohmc (595388)]

How exactly is the GPL violating Anti-Trust laws? Doesn't the GPL do the exact *opposite*? The whole point of open source is to allow others to have access to the same code, thereby leveling the playing field...I guess in a way.

Re:Violates Anti-Trust??

[GooberToo (74388)]

Doesn't the GPL do the exact *opposite*? The whole point of open source is to allow others to have access to the same code, thereby leveling the playing field...I guess in a way.

Yes, it is exactly the as you say. In fact, the power of the GPL is that its strength stems from copyright law. If the GPL is deemed in violation of anti-trust, it means copyright law is in violation of anti-trust. Needless to say, it is not very likely they have a sound argument here.

Re:Wallace v. FSF already said it doesn't!

[Josef Meixner (1020161)]

IANAL, but it would seem that a court having already decided this exact issue would pretty much kill their case. Wallace lost on summary judgment, which means that the court in that case found that, even if everything he said was true (and that was doubtful), he could not prevail. In other words, that claim is very likely to go nowhere, fast. The judge in the Wallace case was a well-respected anti-trust expert, too.

The Skype case is in Munich, Germany, a US court does not exactly set any precedent here. But I doubt the decision will be much different to how it would be if it was, as the GPL has been upheld quite often in Germany as well.

Re:Violates Anti-Trust??

[fishbowl (7759)]

>How exactly is the GPL violating Anti-Trust laws?

It is not.

>Doesn't the GPL do the exact *opposite*?

No. The "opposite" of violating the law is "compliance" and the GPL cannot "comply" with Anti-Trust laws.
A creator of content has certain rights, that are reserved by default, purely on the basis of him having created that work. There are ways to assert those rights, such as giving notice (e.g., "registrations"), but these do not confer any "improved rights", they merely help with evidence when those rights need to be defended.

But the GPL is a license, a grant of certain authority that the licensee would not have without the license.
If you wanted to accused the grantor of a GPL-style license of breaking some law, you would first need to show that the grantor did not have the right to use the license, which in the case of the GPL, would mean somehow depriving the grantor of his rights that he has under copyright law. What you suggest doing would be unprecedented in the US.

The problem for Skype

[gr8_phk (621180)]

The GPL doesn't violate anything, but even if they did manage to get the License declared illegal in some way... They would still be using someone else's copyrighted code without a license. GPL is the only thing that grants you the right to distribute copies, if you throw it out then you've got nothing to stand on. After all the other cases, I still find it amazing that people don't understand this.

Re:Violates Anti-Trust? It's about the money.

[Jaywalk (94910)]

How exactly is the GPL violating Anti-Trust laws? Doesn't the GPL do the exact *opposite*? The whole point of open source is to allow others to have access to the same code, thereby leveling the playing field

SCO tried this same stunt, and we know how well it worked out for them. It all turns on the parts of the anti-trust laws that targets predatory pricing. With predatory pricing, your company sells your product at a loss in order to bankrupt your competitor, then mark your prices up to a level you couldn't sustain if there was any competition. The argument goes that Linux, with a price of zero, must be anticompetitve since it is impossible to underprice them.

There's a whole raft of problems with this argument. Here's my short list. Feel free to add your own.

• * The GPL isn't a monopoly. There's plenty of competition for software out there, including a convicted monopolist.
• * GPL code cannot be priced up if a monopoly is ever achieved. The terms of the GPL prohibit charging for GPL code ever, so real predatory pricing is precluded.
• * The antitrust laws have been gutted by a series of court cases [metrolink.net]. One of the "new" standards is harm to the consumer, an almost impossible to prove issue. (So, how do you know Netscape wouldn't have gone bankrupt anyway?) While Microsoft has benefited from this standard, it also will require Skype to prove that giving away software for free harms the consumer.

That's my short list. Like I said, please feel free to add your own.

Re:Violates Anti-Trust? It's about the money.

[eison (56778)]

"The terms of the GPL prohibit charging for GPL code ever"

This is a horrible misconception.
You can charge whatever people will pay for GPL code.
You just can't sell it to them without also granting them the code and the right to redistribute. That's it. Nothing says no money may change hands.
This is the difference between "free as in freedom" and "free as in beer". GPL code is free as in freedom, not beer.

http://www.gnu.org/philosophy/free-sw.html [gnu.org]

Re:Violates Anti-Trust??

[DragonWriter (970822)]

How exactly is the GPL violating Anti-Trust laws?

It would probably be easier to have a sensible discussion of that if anywhere in TFA or even in the post to which TFA linked as its source there was any indication of the particular legal argument Skype was making.

Of course, even if we had that, the odds of a sensible discussion of German anti-trust law on Slashdot when the GPL is involved would be low.

Doesn't the GPL do the exact *opposite*?

No, the GPL does not do the opposite of violating anti-trust law, which would be enforcing anti-trust law.

The GPL in some ways lowers certain barriers to entry in markets, which would seem to broadly align with the policy goals notionally served by anti-trust laws. But they also impose other restrictions; whether those conflict with laws governing restraint of trade in any particular jurisdictions would be the kind of question that would require knowing the applicable laws in the jurisdiction.

Re:Violates Anti-Trust??

[mea37 (1201159)]

Well, that's the core take-away from this story. We don't yet know how the case will play out, and I certainly don't claim to understand their theory on the anti-trust angle well enough to speculate. But either way, this speaks to the ethical stance of a company.

A company that takes what it needs/wants, knowing what is expected in return; doesn't give what is expected; is caught and convicted; and then challenges the validity of the agreement under which they were allowed to take what they want, with the implied conclusion that they should be allowed to take what they want anyway while giving nothing back.

Bunch of children.

Re:Violates Anti-Trust??

[joostje (126457)]

EULA's impose extra restrictions on top of what copyright gives (cannot reverse engenier, etc); while the GPL gives extra rights over what copyright gives (can run, copy, etc as often as you want). If you claim not to have read the GPL license, you would have been bound to normal copy right law, and not have been allowed to distribute the program at all.

Re:Violates Anti-Trust??

[99BottlesOfBeerInMyF (813746)]

Well... isn't this the old EULA issue all over again? Users actually click the "I accept the EULA I have JUST read" without actually accepting what it says and... to be honest, not even reading it priorly.

No. EULAs restrict what you can do with a copy of software. The GPL is a license for making and distributing copies of software, not using them. Applying this to another medium, imagine you bought a DVD, and then discovered upon running it that it required you to agree not to watch it with the sound turned off. The GPL, on the other hand, would be like buying a DVD and then discovering that it came with a license agreement that would grant you permission from the copyright holder to make copies of the DVD and resell them, if you mailed 10% of the profit to the address listed. In the case of an EULA it is trying to place restrictions on you that are not part of law. In the case of the GPL, it is offering to allow you to take an action that would normally be against the law, provided you agree to the conditions.

EULAs are very questionable from a legal standpoint. The GPL is just a contract for distributing a copyrighted work, just like any other such agreement signed between a record company and Apple or a photographer and a magazine. It is just a very inexpensive agreement and as such, some people mistake it for not being an agreement at all and try to ignore their half of it.

s for the antitrust argument, I have a good handle on antitrust law and it makes absolutely no sense to me. I'll be quite curious to see what they are claiming for a market definition and abusive action. Personally, I think this is just trying to draw out the litigation in the hopes of buying their way out of it.

Re:Violates Anti-Trust??

[Sloppy (14984)]

Definitely not. Microsoft, Blizzard, etc assert that you agreed to the EULA, regardless of whether you did or not. GPL producers never make any such claim. If there ever appears to be a conflict between the copyright holder and the user, then it's an actual question of whether or not the license was agreed to, and the user is the one who gets to make up that answer to that question! The user can say "Yes, I did agree to the license you offered," and then the terms of that license are how you judge whether the usage is allowed or not. But the user can also say, "No, I don't agree to it," and the copyright holder accepts that answer. If the user says No, then copyright law (instead of the license terms) says what acts are allowed.

Don't you see how that's a huge difference?

Simple Solution

[Nom du Keyboard (633989)]

This time around Skype is apparently trying to argue that the GPL violates anti-trust regulations.

If you don't like GPL terms, don't use GPL software. How much simpler can it be?

Re:Simple Solution

[moderatorrater (1095745)]

Don't you see? The source code is right there in the open! It's free! Why are you guys getting so worked up about something that you don't care about enough to protect? The nerve of you hippies; go smoke your pot while us real people turn your code into something useful, something that will revolutionize the world and move us closer to utopia, things like recording television and making phone calls on the internet.

Re:Simple Solution

[neokushan (932374)]

Try telling that to an overpaid manager that's thinking "hmm, we could spend maybe a few thousand hiring software developers to code up this thing we need, or we could save all that money by stealing this free thing. Worst case scenario is we'll need a couple of lawyers to get us out of that pesky GPL thing"

Re:Simple Solution

[Bryansix (761547)]

Or you could use that free thing, add value to it and post the source code like you are supposed to. Then you save money and help out the public good all at the same time. That is how GPL is supposed to work.

Re:Simple Solution

[Bryansix (761547)]

But there is a lot of profit in saving money. That's the point. In Business you make money by doing two things... raking in revenue and controlling costs. It would have been a lot less expensive for Skype to have just played by the rules.

Re:Simple Solution

[L4t3r4lu5 (1216702)]

There's plenty of profit in "public good" if it means the bottom line isn't crippled by solicitor's fees.

Re:Simple Solution

[Bruce Perens (3872)]

Or, you could put all that GPL code into a library and link it in to your app so you avoid the problem of having to release all of your source.

Linking, even dynamic linking, doesn't get you off the hook if you distribute all of the pieces together and they don't work separately. It doesn't necessarily get you off the hook in other cases either (avoiding a long legal discussion).

However, the Skype code, at least the important part of it, isn't in the Linux kernel. It's a user-mode application and the GPL of the kernel doesn't apply to it.

Bruce

Re:Simple Solution

[peragrin (659227)]

Hmm you could always go the apple route and just take BSD code that has a license that makes the software free to abuse as much as you like.

It doesn't take a brain to see the differences. If you wanted it closed use a close source license to begin with.

Re:Simple Solution

[HardCase (14757)]

There has to be a car analogy somewhere around here...

Re:Simple Solution

[rs79 (71822)]

Caveat: IANAL.

But my exes dad was, he was the head of the anti truct division of the justice department in Los Angeles for 15 years.

He had two seminal cases: 1) He beat Howard Hughes in court and 2) he was the guy behind US. Vs. Brown Shoe which I understand was a landmark case and is required reqading for anti trust lawyers today. Never mind Reagan gutted most anti-trust law.

To run afoul of the Sherman anti trust act you must control 2% of the total means of production of something. This is clearly not the case.

This is off the top of my head. Queue NewYorkCountryLawyer dude to correct me (as usual).

Anti-trust theory already tried, and failed

[Bruce Perens (3872)]

The anti-trust theory was already tried in Wallace vs. International Business Machines et al. [wikipedia.org]. OK, Wallace represented himself, and wasn't a lawyer. But it's not going to fly. Why is eBay asleep at the switch while some rogue laywer at Skype pulls this? They have nothing to lose from releasing the kernel, and both reputation and money to lose while they balk.

Bruce

Re:Anti-trust theory already tried, and failed

[R2.0 (532027)]

"Why is eBay asleep at the switch while some rogue laywer at Skype pulls this? They have nothing to lose from releasing the kernel, and both reputation and money to lose while they balk."

For the same reason they are suing Craigslist for stock dilution. I'm not saying I know what it is, but they are both lawsuits with shaky legal ground and huge damages to reputation, so I figured the same genius is behind both.

Re:Anti-trust theory already tried, and failed

[no-body (127863)]

A - didn't Ebaybuy Skype at one point?
B - shooting down the GPL - you can bet there is more behind that push than just "somebody" at Skype

great to speculate....

If it wasn't so dumb...

[Bruce Perens (3872)]

shooting down the GPL - you can bet there is more behind that push than just "somebody" at Skype

Well, if they tried to do it in a smart way. This is about the most stooooopid way possible. First, they use a legal theory that only a fool would pursue and that is, indeed, known for having been pursued foolishly only to be dismissed with a very clear finding by the judge in a U.S. court. Then, they pursue this case when complying with the terms of the GPL would cost them nothing, which is the mark of a lawyer who isn't considering his client's best interest. There is nothing special about Skype that belongs in the Linux kernel. Their proprietary software is safe in user-mode, where this case won't touch it. The only things that would need releasing is the customization for that particular embedded phone device, which is not terribly different from the wealth of customization for similar devices already in the public.

In other words, complying with the terms of the GPL would cost Skype less than pursuing this case.

They're stupid, or crazy. If eBay can't rein them in, what about eBay stockholders?

Bruce

Re:If it wasn't so dumb...

[Chris Burke (6130)]

Then, they pursue this case when complying with the terms of the GPL would cost them nothing, which is the mark of a lawyer who isn't considering his client's best interest.

An alternative explanation, which is fresh in my mind from the recent Reiser judgment, is a client who refuses to listen to the lawyer's advice as to what is in their best interest. At the end of the day, the client is the one who is in charge. In particular a corporate lawyer is going to take the legal strategy they are told to take.

Re:Anti-trust theory already tried, and failed

[HardCase (14757)]

I think, Bruce, that the difference in this case is that it's being tried in Germany, not the US. I suspect that Germany puts as much value on US precedence as the US puts in Germany's.

Still, it does appear to be a stretch.

Re:Anti-trust theory already tried, and failed

[peragrin (659227)]

Actually in germany it's worse. the GPL has not only been upheld it was upheld against SCO's random claims years before a US judge even opened their mouths on the subject.

Not only will this not fly it is going to get flung back at those lawyers. most likely painfully.

Re:Anti-trust theory already tried, and failed

[Carewolf (581105)]

Actually SCO was not only laughed out of german court, they were asked to shut up or be fined for libel, because their statements was so absurd the court could only find them deliberately malicious.

Re:Anti-trust theory already tried, and failed

[Ares (5306)]

I wouldn't say that "absolutely no value" is true, but Germany is under "Civil Law" rules, whereas most of the anglophone world is under "Common Law" rules. Under Common Law, like the US, UK, most of the Commonwealth, etc., case law plays a very important role in future cases, frequently much more so than the actual written law. With Civil Law, which is derived from Roman law, the written law has much more influence from the written law.

Wikipedia has a really good writeup on the differences. [wikipedia.org]

Re:Anti-trust theory already tried, and failed

[Hozza (1073224)]

This case is being tried in Germany, so a different set of anti-trust laws apply than in the IBM case. The original case was brought by people involved in the gpl-violations.org project, who have a good track record of ensuring companies follow the principle of the GPL for products released in Germany. (IIRC, IANAL in Germany anyone can bring a copyright case to court, it doesn't have to be the actual owner of the copyright)

Re:Anti-trust theory already tried, and failed

[Alphager (957739)]

(IIRC, IANAL in Germany anyone can bring a copyright case to court, it doesn't have to be the actual owner of the copyright)

Nope, false.
Only the copyright-owner is allowed to file a case. However, Harald Welte (author of things like IPTABLES) is german and head of gpl-violations.org.

Re:Anti-trust theory already tried, and failed

[c0p0n (770852)]

GPL vs Skype is being held in Munich, not in the US. And the GPL has been successfully tested [news.com] at least once in Germany.

Re:even if Skype wins this one...

[RKThoadan (89437)]

This is a common myth and it's false. If the GPL was invalidated all the code would be owned by it's authors and thier would be no legal way for anyone to use the code without the authors permission. The only time something becomes public domain is after a very long time or if the Author intentionally and legally releases it.

Re:even if Skype wins this one...

[Bruce Perens (3872)]

No. If, hypothetically, the GPL became invalidated for some reason, all GPL code would revert to the public domain.

That's not how it works.

Both Germany and the U.S. have ratified the Bern Copyright Convention (of sometime in the seventies), which made the default all rights reserved if there is no license, not public domain.

If a GPL term were found to be unlawful, it would be severed from the rest of the license, and the rest of the license would stand.

Bruce

Shooting itself in the foot

[Dancindan84 (1056246)]

IANAL, but it seems like their's only two coices 1) The GPL is valid and they need to comply 2) The GPL is invalid and they arein violation of copyright. Aren't they shooting themselves in the foot arguing that it's invalid?

Re:Shooting itself in the foot

[91degrees (207121)]

Option 3 - the clause that requires them to release code is invalid/only applies to the unmodified version of the code. Option 4 - Chewbacca is a Wookie and therefore the copyright belongs to Skype. Both of these are unlikely but there's not a dichotomy here.

Re:No, no and ummm ... NO

[Spy der Mann (805235)]

GPL is a license to use the software.

The GPL is *NOT* an EULA! It's a DISTRIBUTION license!!!

Maybe

[jav1231 (539129)]

Maybe it's time I shitcanned my Skype account.

SIP is the *open* and *free* alternative

[gnuman99 (746007)]

You don't know the alternative and call yourself a geek? Or, maybe an AC is no a geek!

The alternative is to use SIP phones. And then if you don't like one provider, you get another. For example,

    http://les.net/ [les.net]

is one provider I've had experience with. But you can get lots more if you want,
    http://www.sipcenter.com/sip.nsf/html/Service+Providers [sipcenter.com]

With SIP you can use ANY provider and not waste money on substandard service. Heck, with SIP *you* can be your own provider with Asterisk PBX software.

There is probably more real phones available for SIP than the proprietary protocols like Skype,

http://www.grandstream.com/products.html [grandstream.com]

Very good phones from my own experience. Skype has been an obsolete VoIP solution for years now. Anyone seriously looking for a flexible VoIP solution, will only look at SIP.

Antitrust?

[Millennium (2451)]

OK, forgive me if I'm wrong here, but I thought the whole purpose of antitrust legislation was to crack down on things that discourage competition.

What in the GPL discourages competition? Nothing. You can make your own competing programs all you want. You may not be able to use GPL'd code without also releasing your source, but this is irrelevant: no one complains when Coke doesn't let Pepsi use the Coke recipes.

Even if that were a legitimate complaint, however, it would still be irrelevant. There is plenty of competition, even among GPL'd software. Consider the myriad Linux distributions, to give an example of entire businesses that compete with one another despite using GPL'd products. If Skype wants to compete with Linux using some kind of "Skynux," they too are free to do so. All they have to do is comply with the license.

Re:Antitrust?

[rkanodia (211354)]

Welcome to the new capitalism. What's mine is mine. What's yours is mine. If you attempt to stop me from taking back the things of mine, which you have had the sheer gall to put in your own possession after doing nothing but think them up with your own mind and create them with your own effort, I'll sue your ass.

GPL section 9 throws this case out.

[IGnatius T Foobar (4328)]

9. Acceptance Not Required for Having Copies.

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.


In the GPLv2, the language was simpler: "You are not required to accept this license, since you have not signed it. However, nothing else grants you permission..." It's completely clear. You accept the terms of the GPL as written, or you don't use the code. Period.

appeal withdrawn by skype

[wes33 (698200)]

according to this site (in German) the appeal has been withdrawn and skype has retreated with its tail between its legs.

http://www.linux-magazin.de/news/ [linux-magazin.de]

It seems - as usual - lawyers think they can beat down the "amateur made" gpl ... until they take a few minutes to understand it.

Seriously, though: fuck Skype

[Sloppy (14984)]

I know their service appears to be superior to traditional POTS and mainstream VoIP offerings, but they still suck. You're locked into a proprietary protocol that doesn't interact with anyone else's apps, and the crypto is "fake" (in the sense that Skype is always the trusted introducer for key exchange, and is therefore subject to coercion by, say, governments).

Kill this app. The "free" calling seems neat, but this isn't what we really need. Like the iPhone, it's a good demo of the future, but everyone loses if the actual product is the future.

Re:I fought the license....

[sm62704 (957197)]

I usually prefer the Dead Kennedys version of that song to The Crickets version, but not in this case. YAY GPL!

Drinkin' beer in the hot sun, I fought the law and I won
I needed sex and I got mine, I fought the law and I won
The law don't mean shit if you've got the right friends
That's how the country's run
Twinkies are the best friend I've ever had
I fought the law And I won
I blew George & Harvey's brains out with my six-gun
I fought the law and I won
Gonna write my book and make a million
I fought the law and I won
I'm the new folk hero of the Ku Klux Klan
My cop friends think that's fine
You can get away with murder if you've got a badge
I fought the law And I won I am the law So I won

Re:Dumb!

[cfulmer (3166)]

Antitrust regulations govern interactions and arrangements among companies. The GPL can be one of those. Cross-licensing agreements, effectively what the GPL is, have been held to violate antitrust law when they're used to keep competitors out of a market.

Consider a company that manages to create a de facto standard based on GPL software and then use the GPL to force competitors to release changes to their own software. The original company doesn't have to do this (since, as the author, it doesn't have to release its own changes). As a result, the original company has a competitive advantage over its competitors.

I'm not asserting that this applies here. But, there are situations where it might.

Re:Dumb!

[Ares (5306)]

Igb, I'm assuming that you're talking about the sources with this. As long as they're the sole copyright holder, they don't have to release the source for those changes, as they aren't a licensee of their own software. If I as the author of some GPL'ed software choose to release a binary-only version of that software under some other license with a feature not encompassed in the GPL release, I'm free to do so. I certainly won't get much standing in the community for it, but I am free to do it. MySQL had plans to do this before Sun reversed that path.