GPL vs. Skype Back In Court 369
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?? (Score:5, Insightful)
Simple Solution (Score:5, Insightful)
If you don't like GPL terms, don't use GPL software. How much simpler can it be?
Anti-trust theory already tried, and failed (Score:5, Insightful)
Bruce
Re:Simple Solution (Score:5, Insightful)
Re:Simple Solution (Score:5, Insightful)
Re:Violates Anti-Trust?? (Score:5, Insightful)
Re:Simple Solution (Score:5, Insightful)
It doesn't take a brain to see the differences. If you wanted it closed use a close source license to begin with.
Re:Shooting itself in the foot (Score:1, Insightful)
Geeks like us tend to see things as binary, algorithmic, "EITHER gpl is valid OR it's copyright infringement". This naive take on the law will blindside us when more cases like this proceed to trial unsettled.
Re:Simple Solution (Score:3, Insightful)
If it wasn't so dumb... (Score:5, Insightful)
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:Simple Solution (Score:5, Insightful)
Antitrust? (Score:4, Insightful)
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:Simple Solution (Score:4, Insightful)
Re:Violates Anti-Trust?? (Score:5, Insightful)
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:Simple Solution (Score:3, Insightful)
True. "Public good" is not profit, but the price you pay for incorporating someone else's GPLed software into your product. (You know, the "free as in freedom, not price" thing.) If Skype is not willing to pay that price, they should not have used the software.
Re:Dumb! (Score:2, Insightful)
It absolutely will NOT stifle competition, because anything you release can only help other companies if they decide to use it.
Which means...a restraint of trade can ONLY happen with the cooperation of the victim.
"You gotta give out the source code" does NOT mean "you can't use this".
The only case where the GPL "encumbers" anything is if there's a patent involved, in which case the encumberance is both legal AND preexisting anyway.
In principle, this, is complete bullshit.
In practice, I fear some judge might not see it that way, especially in this current plutocracy.
Re:Violates Anti-Trust?? (Score:5, Insightful)
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.
Re:Violates Anti-Trust?? (Score:5, Insightful)
Re:Simple Solution (Score:3, Insightful)
Unless they are selling the handsets at below cost, I can't see that reasoning really being true. But I'm not one of the skype managers who have decided that lawyers are worth the price.
The problem for Skype (Score:5, Insightful)
Re:Violates Anti-Trust?? (Score:5, Insightful)
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:Anti-trust theory already tried, and failed (Score:3, Insightful)
Now, figure out how their proprietary value is in that kernel code. If it's just driver code, rather than the skype application, the user interface, etc., it does not represent some big trade secret or a large amount of proprietary value to the company.
Bruce
Re:Dumb! (Score:3, Insightful)
Re:Violates Anti-Trust? It's about the money. (Score:5, Insightful)
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:Anti-trust theory already tried, and failed (Score:5, Insightful)
Wikipedia has a really good writeup on the differences. [wikipedia.org]
Re:Dumb! (Score:3, Insightful)
Re:Violates Anti-Trust?? (Score:4, Insightful)
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.
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:Antitrust? (Score:3, Insightful)
Then don't use the GPL'd code. Again, going back to the Pepsi vs. Coke example, they use different recipes and compete quite nicely. Nothing is stopping Skype from doing the same.
Re:If it wasn't so dumb... (Score:3, Insightful)
So, you're saying the lawyer's not an idiot, it's management that are idiots.
Bruce
Absolutely Stupid (Score:3, Insightful)
Freaks!
I say they can run, but they cannot hide.
-Hack
Re:Violates Anti-Trust?? (Score:3, Insightful)
On that, if a particular GPL product (we'll use GCC from your example below) were to be so widely used that it was the only product, well, that says something about GCC, now doesn't it? Is anything or anyone stopping a person or group of persons from creating a competitor? No. If they did so, and it was better (in whatever way you wish to define "better"), people will switch to it. If it didn't offer anything over the existing "standard" product (in our case, GCC), then no one will use it. It's not GPL's fault, and to argue that it is is just insane.
Re:Violates Anti-Trust?? (Score:4, Insightful)
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?
Seriously, though: fuck Skype (Score:5, Insightful)
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:Violates Anti-Trust?? (Score:2, Insightful)
Re:Violates Anti-Trust? It's about the money. (Score:3, Insightful)
And they got to write the specifications.
Re:Simple Solution (Score:3, Insightful)
If they want to legally distribute it, they cannot do so unless they offer the source for prop.dll. If you can't offer the source, you can't redistribute. It's that simple.
Re:Violates Anti-Trust?? (Score:2, Insightful)
But the GPL is an expression of rights that the grantor has under copyright law,
and among those rights, is in fact, a limited monopoly on distribution.
Re:Simple Solution (Score:3, Insightful)
The funny thing is, they did care enough about it to protect it -- hence the first court case that they already won. Too bad Skype's apparently too stupid to figure that out...