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."

I wonder...

[jskline]

Didn't Microsoft try this tactic some time back?? I'm almost sure of it but can't remember what and when. Seem to me they were trying to get the whole premise of "free software" banned on a legal level. Anyone??

Shooting itself in the foot

[Dancindan84]

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?

GPL code already available?

[Ford Prefect]

I've got a Belkin Skype phone, which judging by pictures and reviews is nigh-on [amperordirect.com] identical [belkin.com] to the SMC model - and while looking for updated, marginally less buggy firmware a while ago, I noticed that Belkin had 'GPL Downloads' [belkin.com] available for their own product.

No idea what's included (there are two versions of a ~100MB .tgz), but there's definitely something.

Now to get the bloody thing to talk WPA to my (also Linux-based) router thingy...

Re:Anti-trust theory already tried, and failed

[R2.0]

"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]

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....

Re:Anti-trust theory already tried, and failed

[Anonymous Coward]

If ever there ever was a time to apply section 4 of the GPL surely appealing like this after losing the initial decision is it.

Maybe

[jav1231]

Maybe it's time I shitcanned my Skype account.

Re:Dumb!

[cfulmer]

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:Anti-trust theory already tried, and failed

[peragrin]

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.

Why didn't they use NetBSD?

[Anonymous Coward]

Disclaimer: I use Linux (Debian) and FreeBSD. And never used or installed NetBSD (yet).

But if I had to pick an OS that worked on commercial devices such as phones, I would see if NetBSD met my needs before choosing Linux (assuming I didn't want to comply with GPL):

a. because it is an OS designed to work on numerous hardware platforms

b. because it uses a BSD license which does not require the resulting works to be published as open source

Why do companies continue to screw up by overlooking alternative OS that don't require them to challenge GPL in court?

But from the perspective of a consumer, I'm really enjoying Linux-based firmware like Tomato 1.19 (think of it as DDWRT minus less-frequently used features, plus AJAX interface)

Re:Anti-trust theory already tried, and failed

[Toonol]

The eBay lawsuit against Craigslist isn't shaky at all; from everything I've seen, including their own admissions, Craigslist illegally diluted eBay's share in the company. I like Craigslist better than eBay, but I think they'll lose this one.

The Skype lawsuit seems pretty groundless, though. It's probably some lawyer feeling that they need to exhaust every legal option, even the craziest ones, before admitting a loss.

What is their argument?

[Anonymous Coward]

I'm interested to hear how they argue that GPL violates anti-trust regulations.

I can only find the argument by Wallace that essentially said it was a collusion to lock him out of the OS market by providing an 'unbeatable price'.

I'm assuming Skype must have some other angle. Otherwise I suspect folks will want to have a word about their 'unbeatable prices'!

Re:Simple Solution

[Redlum_Jak2]

Even simpler. use the free thing when you have no revenue and no one cares. When the product becomes successful and someone notices that you're doing something illegal, then delay long enough to re-write it. When Skype is no longer using Linux, then they won't have to divulge their code.

Re:Anti-trust theory already tried, and failed

[Richard_at_work]

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

I'm pretty sure this conspiracy theory will soon rank right up there alongside aliens at Area 51, the JFK shooting, the thousand mile carburetor and other notorious theories.

If Microsoft wanted to legally challenge the GPL, they could easily set up a dummy corporation with huge amounts of money whose sole employees are top notch lawyers and their only job is to build a case and fight it. They wouldn't be doing it piecemeal through half arsed efforts through companies that hold no fealty to them.

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

[Chris Burke]

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:Antitrust?

[Anonymous Coward]

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

Forcing others to release their source can restrict competition, for example if the other source contains code under licenses that don't allow redistribution.

but this is irrelevant: no one complains when Coke doesn't let Pepsi use the Coke recipes

People complain about printer companies locking inks, or automobile manufacturers locking down replacement parts.
There's a chance that GPL gets treated like those restrictive EULA's, where overall it's not illegal, but parts of it get invalidated for being too restrictive.

Re:Violates Anti-Trust??

[GooberToo]

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.

What this case is really about

[Ares]

IMO, this case from the Skype point of view, is more about protecting the hardware from what one might call "rogue" firmware developers. Compared to SIP based hardware, Skype-only equipment is very cheap. If a new firmware image could be built for the phone, it would be incredibly easy to use the phones with Asterisk rather than the intended Skype, simply by replacing the phone application with something that speaks SIP, since the hardware access pieces of the software would fall under the GPL, being part of the OS.

Re:Anti-trust theory already tried, and failed

[kripkenstein]

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

Just a random theory: Perhaps they modified the kernel in some way, for example, adding device drivers for their particular hardware, or something else. Which means that if they supply the source code, they need to supply their own kernel-residing code as well, and not just the vanilla kernel.

Re:Anti-trust theory already tried, and failed

[Chosen Reject]

These three links should get you started:

eBay Sues Craigslist, As Craig And Jim Dilute eBay's Share [techdirt.com]
Details Come Out On eBay/Craigslist Fight [techdirt.com]
Craigslist Responds To eBay: I Know You Are, But What Am I? [techdirt.com]

Re:Anti-trust theory already tried, and failed

[kripkenstein]

Oh, I agree with you, I highly doubt that even if they did modify the kernel, that there is any significant reason not to release the source. Skype itself is in userspace, presumably. But, perhaps having to release source of any kind is too frightening for them (they wouldn't be the first company with that irrational fear).

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

[MBGMorden]

But wouldn't the first buyer be able to distribute all the code and source as much as he likes as soon as he gets his han on it?

Yes, but that needn't be a bad thing. Imagine a "code-for-hire" situation. Some local company asks me to develop a custom application that does SomethingReallyCool(TM). I agree to code this application for a contracted fee under the terms that I own the copyright and that I can license it under any license I so choose. So I code the app for them, GPL license it, and then provide them with the binary code as well as a copy of the source.

I was able to underbid competing developers because I got to reuse various libraries and code that competitors couldn't use. I also can release the finished product on the web for free. Everyone is happy. The original company wanted the application and they got it (with source code as a bonus). Sure they paid while everyone else now gets it free, but they were the ones who wanted it the most. The fee (lower because I was able to reuse code as mentioned) was worth it to them just to get the program they wanted. I got money for my time invested. The community gets a shiny new app that does SomethingReallyCool.

Re:The problem for Skype

[Anonymous Coward]

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.

Not really. Proving that a part of the GPL violates anti-trust would not automatically mean that the code used was not actually licensed successfully. They would only need to apply this claim to the relevant sections which represent their non-compliance. I have no clue how they intend to argue this, and I doubt they will be successful, but I will be interested to learn what sort of things they come up with.

Re:Violates Anti-Trust??

[Anonymous Coward]

Parent is of course right that the GPL in and by itself does not violate the anti-trust law. It's just a license grant, in the end just legal text. An anti-trust violation has to be an actual action, not just text. E.g. putting source code under the GPL is an action. Suing someone over a GPL violation would be an action. The question is, is there any action that involves the GPL in some way be construed as an anti-trust violation?

One approach would be the "essential facilities doctrine". Under certain circumstances, a dominant player may be forced to trade with potential customers, if they have a monopoly. This also includes legal monopolies, such as patents and copyright. A copyright holder can sometimes be coerced to sell licenses. Offering *only* a GPL license might rob a potential customer from income, and thus be an anti-trust violation. Especially if that potential customer is a competititor in related fields.

Re:Buh, Bye, Then.

[bill_mcgonigle]

Oh, right, and this is an eBay company. Double ding.

I hope eBay doesn't use any GPL'ed software, or they're going to be in violation of the GPL by rejecting the license.