German Court Convicts Skype For Breaching GPL

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)."

Damn

What a bunch of GPL Nazis.

Re:Damn

Let me get this straight. It's a net based phone application, which you need access to the internet to be able to use anyway, but yet an url where you can find the source code for the relevant part of the app isn't sufficient? Can someone help explain the insanity here, or am I not seeing something blindingly obvious?

Correct terminology

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.

Re:Correct terminology

You said the GPL was violated in a post trying to explain why it's Copyright and not the GPL that was violated.

Re:Correct terminology

You *can* violate the terms of the GPL, if you do you lose your rights to distribute (since it is what gives you the rights). However you would not be convicted of doing so. Instead, you would be convicted of distributing without a license in violation of copyright (since you had no license to distribute). It's a technicality I know, but I wish more people would understand the specifics.

Just out of curiosity

Are you talking about American courts or German Courts. Because each country interprets the GPL, and copyrights, in very different fashion. Heck, in china, they ignore you until for some minor reason, you piss them off. Then you are shot. I think that is one of the VERY few countries that do that (for that reason).

Re:Only if copying is not fair use

There's a minority opinion in US circles that suggests that copying an executable, in order to use it, constitutes fair use.

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]:

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

In short: It's not fair use (that's a different set of exemptions), but it is legal.

Re:Correct terminology

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.

Re:Correct terminology

you get runner up for using the word "pedant".

but you don't get a certificate. We're kindof assholes like that.

Re:Correct terminology

This is far from pedantry. Using terms suggesting that someone would be convicted or held liable for a "GPL violation" suggests that a court must uphold the GPL as valid for such a lawsuit to be successful. This makes people believe (erroneously) that the GPL is a questionable document that needs to be tested in court.

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).

Re:Correct terminology

Using terms suggesting that someone would be convicted or held liable for a "GPL violation" suggests that a court must uphold the GPL as valid for such a lawsuit to be successful.

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.

This makes people believe (erroneously) that the GPL is a questionable document that needs to be tested in court.

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 :P) "breach of the terms and conditions of the contract"?

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.

Re:Correct terminology

Hey, we're having a legal discussion here -- pedantry is necessary!

Conflict and Chaos in the Hive Mind!

Court upholding GPL - Good!
Conviction for copyright violation - Bad!

What's a loyal drone to believe anymore??

Re:Conflict and Chaos in the Hive Mind!

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.

Misleading or incomplete summary.

The actual problem is that they did not include the text of the GPL with the phone. The summary here in Slashdot didn't mention that, and had me wondering what the problem with the provided URL was.

Source Code

If anyone is looking for the source code it's here [smc.com]

Can also check out this link for more info here [wifiphone24.com]

The interesting part

After a previous conviction, a sheet was included
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

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.

Re:Slashdot Hypocrisy

Why not!

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.

Re:Slashdot Hypocrisy

Yes we can. And do. You see, RIAA/MPAA are evil. The OSS guys are good. Haven't you seen Star Wars?

Re:Slashdot Hypocrisy

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.

Re:Slashdot Hypocrisy

Now we will see the same people who oppose RIAA/MPAA copyrights cheering the copyright action that enforces open source. Don't you see that you can't have it both ways?

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.

Re:Slashdot Hypocrisy

I think your point is missing reality a little. We have a few things to keep straight.

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.

Re:Beginning of the end for open source?

You are mistaken. The only way that Open Source will die is if this type of thing doesn't happen. People like Harald are doing their best to uphold Open Source, as well as Free Software. If you want to allow corporations to fuck everyone else over and take without giving back, then you should really be looking at one of the BSD licenses.

"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.

Re:Hooray for Harald!

At some point there will be a case where an evildoer will use the defense that since the copyright holder didn't pursue company X 5 years ago they should be prevented from trying to do it now. And poof! The copyright will vanish or be declared null and void and with it the GPL distribution license that goes along with it.

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.