GPL Successfully Defended in German Court 210
Philip Bailey writes "The GPL Violations Project, based in Germany, have won (subject to appeal) a court case against D-Link, who had allegedly distributed parts of the Linux kernel in a product in a way which contravened the GPL. D-Link had claimed that the GPL was not 'legally binding' but have now agreed to cease and desist, and refrain from distributing the infringing product, a network attached storage device. Expenses, including legal expenses, were received by the plaintiffs; they did not request any damages, consistent with their policy. They have previously won a number of out of court settlements against other companies. Slashdot has previously mentioned the GPL Violations Project."
Legally binding? (Score:3, Informative)
What does this say about propietry software's licenses?
Re:Legally binding? (Score:5, Insightful)
Re:Legally binding? (Score:5, Interesting)
I suppose that by these same arguments you could argue that EULA's must be valid because nothing else grants you the right to use copyrighted materials when you buy a program from a closed-source vendor. But EULAs go beyond copyrights into contract law, I believe they are a different beast than source code licensing.
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Over here, though, an EULA cannot be enforced unless you buy the software directly from the company that wrote it. The reason for this is that buying an off-the-shelf copy of, say, Windows XP from your local computer store is a deal between two parties - you and the store owner. Therefore, Microsoft is not an involved party in this deal, and thus cannot dictate what you may or may not do with the software.
Of course, if you buy directly from Micr
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Of course, copyright law doesn't require all the extra crap that is often thrown into an EULA as well (eg no publishing benchmarks)...
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Completely false. [cornell.edu]
Copyright law (in the US) explicitly allows these copies.
You do not need to agree to an EULA in order to run a piece of software.
Re:Legally binding? (Score:5, Informative)
The GPL is NOT legally binding. It never has been, and it never claimed to be.
Copyright law is legally binding. If you want to distribute copies of software (Be it Microsoft's or Richard's or Linus's) you need permission from the copyright holder. You're quite welcome to completely ignore the GPL, but in that case you have no permission to distribute copies of the software and doing so becomes copyright violation.
It's really simple.
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Re:Legally binding? (Score:5, Informative)
And AFAIK EULAs aren't considered valid under German law.
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but as long as they confirm to the $$305 ff BGB (the successor clauses of the formel AGB-Gesetz (law to regulate fine print in contracts)) they can - AFAIK - be perfectly valid.
On the other hand, the majority of EULAs is so outrageous they would not pass muster in most iurisdictions, including Germany and the EU.
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Re:Legally binding? (Score:4, Insightful)
Yup, it looks like the GPL is now (officially) legally binding in Germany.
No, the GPL is not legal binding in germany. In germany only 2 things are legal binding: laws, and contracts. And this is more or less true also for the rest of the world, except that in some countries court rules "become law" or are similar to law unless in later times other courts do no longer agree in certain situations.
What after all does legal binding in your eyes mean anyway?
This says nothing about the EULAs that come with proprietary software. Those are different licenses with different terms, and would have to be tested individually.
What is an EULA? Something you agree on before you buy a product, that is before you aquire ownership? If so the EULA is completely valid as long as it does not contradict any law.
If you have aquired ownership of the product before the EULA is presented to you, e.g. there is a EULA on a sheet of paper inside of the box, or after opening the box and using the software a EULA dialog pops up, the EULA is completly irrelevant and void.
Back to the topic: as far as I understand the ompany D-Link claimed they simply used the GPLed software and had no contract with the author so the "GPL note" on the software would be not legal binding. Thats of course a bullshit idea of D-Link, especially as this is not the first GPL law suit in germany and in all cases the copyright owners won
angel'o'sphere
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This is basically just a relief for people who had doubts in the past.
Re:Legally binding? (Score:5, Informative)
IANAGL, but as far as I know, the Ius Commune based legal system in Germany doesn't require a court decision setting precedence before a legal contract or new law is binding, nor does one court have to support earlier decisions by other courts.
All the precedent does is make it easier to fight similar cases, as one can draw on the experiences of the earlier case.
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Re:Legally binding? (Score:4, Insightful)
It should say absolutely nothing, because the GPL only covers distribution (which you don't automatically have a right to do) while most proprietary software licenses try to cover mere use (which you do automatically have a right to do, under the Doctrine of First Sale). Unlike the GPL, EULAs have no real meaning.
Of course, I'm not German so I have no idea if they do things differently than we do in the US.
Strange.... (Score:3, Informative)
I don't get it..
Why were they barred from distributing the product?
Or was there some reason that they could not also just distribute the source, which would have also made them compliant with the GPL?
Re:Strange.... (Score:4, Informative)
Re:Strange.... (Score:4, Insightful)
In this situation, there is absolutely no way for the clueless company to legally sell the executable. Under the GPL, it must supply the source code for everything needed to build the executable. The only options are: 1) violate the GPL and try to get away with it; 2) release the complete source and get sued by the other closed source licensors for violation of the NDA; 3) no longer sell the executable. I wonder which options most companies would go for?
I bet you this happens all the time. Perhaps even in some of our favorite closed source Linux kernel modules. NDAs are the primary reason given by NVidia and ATI for not open sourcing their graphics card drivers. Perhaps there are even several layers of this happening, with companies trying to sell licenses to closed-source modules that include GPLed software.
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4) Replace the GPL portions with code you wrote or bought
5) Replace the NDA ones with code you wrote or bought
Re:Strange.... (Score:5, Informative)
He got it from here:
http://www.gnu.org/licenses/gpl-faq.html#GPLIncom
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That pretty much sums it up. The way companies like nvidia get away with shipping binary drivers is to not actually link their binary with any GPL code and let the user do that part. Since the FSF and the GPL both recognize the fair use right for people to do whatever they want with GPL software for their own use (without redistributing it), it's legal.
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For example, if I have a painting and a license to copy and distribute the copies as close to verbatim as technologically possible, I am permitted to put them in a frame before distribution. That does not form a derivati
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Why were they barred from distributing the product?
Because the product (lets give it the version number 1.1) does not honour the GPL, so it's banished from distribution, ofc.
Or was there some reason that they could not also just distribute the source, which would have also made them compliant with the GPL?
Of course they can do that, but then they have a new product with the version number 1.2 (source included). That one then would be distributeable again
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Oh, well
From the GPL perspective it's completely wrong. If DLink has agreed to distribute source, that would have immediately been the end of the matter and no further action would have been taken.
So, what would be cour case? Simplified: hello judge, I want them to include source, because this is the license:
So, what should the judge then do? Say: "uh, oh, cool. Yes, acc
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Consider the typical Microsoft/BSA lawsuit where a company is found to be noncompliant. The company always has the option of buying the appropriate number of Windows licences and are allowed to continue operating with the exact same software that is already installed. The last thing Microsoft want is forcing someone to switch to Linux!!
How is this any different?
The difference is exactly as you describe below! The two parties have to agree in front of the judge (in thes case the accused party would have to g
GPL vs EULA (Score:3, Insightful)
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Here are a few examples:
(1) Who gets to enforce the GPL? I don't know much about the GPL-Violations group, but if they didn't write any of the code then (at least in the US), they wouldn't have standing to enforce the GPL.
(2) While we're at it, what is the ownership status of a work with one original author that has been modified
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Hey, I have an idea. Instead of posting something that draws on no actual facts, you could take two minutes and read their homepage [gpl-violations.org]:
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But if it is illegal, then shouldn't somebody be bringing those lawsuits?
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Re:GPL vs EULA (Score:5, Insightful)
The untransferable right of the author in German law is called "Urheberrecht", roughly translated as "creator's right". If I write software, then I am the creator, and according to German law nobody else is allowed to claim to be the creator. I cannot even sell you the right to call yourself the creator. That is the right protected by Urheberrecht: The right to claim that I am the author. There seems to be no such right explicitely mentioned in US law; on the other hand, if US citizen A writes some software, and US citizen B claims he wrote it, then B is a liar.
However, the US copyright _is_ the right to commercial exploitation. So your mapping US copyright = German Urheberrecht, ??? = german right to commercial exploitation is wrong. The correct mapping is German Urheberrecht = nothing corresponding in US law, German right to commercial exploitation = US copyright law.
No distribution of the source? (Score:2, Interesting)
The group eve
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Who knows what other corpses they had in the cellar (to use a german proverb)?
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This is the viral nature of GPL. I suspect from now on, D-Link will move over to one of the BSD's, probably FreeBSD. The viral aspect of GPL is what I suspect keeps many companies from going full Linux. At least when you make a deal with the Devil, i.e. Microsoft, and MS allows you to modify one of their Windoze kernels for a ha
Re:No distribution of the source? (Score:5, Insightful)
In fact the same is valid for the BSD licence. The original copyright holder has to be mentioned in all derived works, and also in the derivations of the derivations. In this case the virality is attached to another aspect, but it is still viral.
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I agree with the rest of your post, but this part is wrong. You can legally fold, spindle, and mutilate any copy of something you own (subject to any other contracts that may limit you) without asking permission of the author. Copyright is just that: the right to copy. It says nothing about the right to modify.
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This aspect of linking which requires relicensing is what makes
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In other words, it *is* like it's something they wrote. They stood on the shoulders of others, but they still had to do their own work to get it to work with their hardware and do what they want it to do. Seeing as they use off the shelf wireless chipsets, ethernet controllers, and such, there's absolutely nothing to stop a competitor from using the source code they would have to release und
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Conversely, there was nothing stopping them from just grabbing Linksys' WRT source code, or OpenWRT, or any of the other Free Software firmwares and running it on their router. Then they'd become that "cheaper alternative!"
Besides, that's exa
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Ok, so they modified it. They're still uses other people's work. Let's say I take Windows XP and modify it. A lot. I make it into a live CD that can run on PPCs. Now, can I just sell co
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You're absolutely right. It is copyrighted. I'm not defending what they did, I'm just saying that it makes better sense from a corporate point of view to keep their source closed.
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If I was a maker of ATM machines, PDAs, embedded devices, etc, this is what my concern with GPL would be. I certainly would not want to sink millions of dollars into R&D on a product only to have a competitor cobble together a clo
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That's more likely a defect in the article than proof that the GPL Violations Group did not explain this to D-Link. After all, the best possible solution is for the product to still exist and the GPL to be followed, by releasing the source.
But, if you really want to know, why don't you ask the GPL Violations Group instead of speculating on Slashdot?
How arrogant (Score:3, Insightful)
How hypocritical!
Re:How arrogant (Score:5, Insightful)
Re:How arrogant (Score:5, Insightful)
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Re:How arrogant (Score:4, Insightful)
Your "counterpoint" is stupid. Here's the bottom line: anything that increases the user's freedom is good. If copyright infringment (or better yet, DRM circumvention) does that, it's good. If the GPL does that, it's good. Legality is irrelevant.
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Must be good since it's giving DLink, as the user, more freedom.
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D-Link isn't the user; the user is the user!
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The rationale behind copyright agrees that one of the necessary conditions to have Works of Art at all is to have a huge amount of Art and Knowledge accessible to everyone, and the more of those are available, the more new works will be creat
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Not at all. Precondition: you have some GPLd code. You decide to release a product based on that code. How on earth does DLink releasing a closed-source product also based on this code in any way reduce your ability to do likewise? Or anyone else's, for that matter? What you seem to be saying is that DLin
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GPL says: You are free to do anything with the code, as long as you give others the same rights to your work I gave you to mine. Some call this "restrictive", others call this "promoting freedom".
It depends on your point of view. If you are just looking which license
Did it ever occur to either you... (Score:5, Insightful)
I myself have a very low opinion of those who think they have a right to copy whatever they want because "information wants to be free". I see such people as manufacturing reasons to justify their own shoddy behavior. OTOH, I have a very high opinion of the GPL(and other open source licenses) and those who defend them.
Just keep that in mind.
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Re:Did it ever occur to either you... (Score:4, Insightful)
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Where's the conflict between wanting people to be able to copy, modify, and redistribute what they receive, and supporting the GPL which manages to achieve the trick of achieving that for software in a world of strong copyright? The stronger copyright is made, the stronger the GPL becomes, and the more it can be enforced; conversely, weakening copyright weakens GPL enforcement but equally makes it less necessary. Given the circumstances we find ourselves in, with perpetual copyright and looming digital rest
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cease & desist on GPL violators? Slashdot has a lot of users, with different opinions,
and most of them wrong
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Some differences;
- accusations of GPL breaches are usually well-researched and levied at the correct legal entity, where the *AAs have been known to send C+D letters based on similarity of filenames
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Are OSS advocates doing the same for their works? No.
In skankazoid D-Link's case, I doubt their bias has much to do with protecting the interests of the end-user. Their capacity for respect stops at anything smaller than the size of an office park, with a seven-figure market cap and a team of lawyers flying a commercial banner
The same D-Link? (Score:5, Informative)
I havn't checked the driver CDs in the Intel & Belkin cards yet to see if they have Linux drivers on them. While I'm at it, also shame on Intel for not mentioning Linux on the box; Novell & Windows logos are there, but nothing for Linux (The Belkin & D-Link boxes do not mention any OS compatability at all)
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If I recall correctly, I got a printed copy of the GPL with each of my Netgear products (2 wireless APs), along with an URL from which to download the relevant source. I can't vouch for the source though, as I never bothered.
reperations (Score:2, Insightful)
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Damages are about financial loss.
Copyright is about copying; monopoly. What you do with a monopoply is largely up to you; within the limits of law. You may choose to exploit it for financial gain or not. If you do not that does not infringe on the enforcability of your legal monopoly.
The GPL requires a sharing of code. Code is what you can demand in court. Those are the only teeth that the GPL is designed to have. It's about the code, not money.
If you want mon
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In that case, what they ought to do is demand that the source code be released without giving the option to merely cease and desist. The violation has already occurred; users already have devices that they should be free to modify but aren't; therefore, releasing the code is the only reasonable outcome because it's the only thing that actually fixes the problem!
Of course, since IANAL I don't know if this is actually possible. It could be that the damages must be monetary. In that case, they ought to demand
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In order to prove the copyright violation, the plaintiff had bought a device and reverse-engineered the firmware on it.
He successfully demanded the purchase price and expenses for reverse engineering. So D-Link now has to pay him back the price of the device - which he in turn must return back to D-Link of course - and 4 hours at 140,-EUR each.
Plus, of course, loser pays.
Double Dumb (Score:2)
Sorry, no. (Score:2)
If they didnt anything further than running a stock linux system, they would have a hard time not releasing own source, too.
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Flamebaiting jackass.
You know what really burns me? (Score:3, Interesting)
I've got a Belkin F5D8230-4 MIMO wireless router and the matching F5D8010 cards. Airgo makes the chipset on both. Guess what the router's internal OS is? Guess which OS doesn't have driver support from Belkin/Airgo for the card? I know--this is probably off-topic, as Airgo does release some parts of the router's bits and pieces to the public. That being said, however, to me it's like a violation of the spirit of the GPL to make use of the GPL'd OS to make your product a success, then turn around and very pointedly ignore the support needs of the folks whose code you depended on to get your product off the ground (and Belkin wireless pre-N stuff is exceedingly popular now, as even a casual scan of the Wireless Aisle at the Usual Retail Outlets will confirm). Reading the forums, there's a lot of Linux folks out there who'd love to have a bona fide driver available from the OEM. Probobably a few of whom have contributed code to the OS at one point or another which Belkin/Airgo is dependent on.
At least you can get the card to work via the NDIS kludge (but not in every case, and not even using Belkin's Win32 drivers). I guess I shouldn't complain. WinXP-64 campers are completely out in the cold with this kit, so my partner won't be able to upgrade her Win2K any time soon.
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The preceding poster is a wholly owned subsidiary of the the Mitsubishi Corporation and his post may not be reproduced, in whole or in part, without the consent of Major League Baseball.
Where are the kernel devs? (Score:2)
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Not a test of the GPL (Score:4, Insightful)
As much as I'd like to see a legal test of the GPL (not because I think it's invalid, but because coporations will become much more willing to deal with it, once it's been proven in court), this is simply a very, very basic test of copyright law. It's amazingly basic, but apparently some people still don't get it: D-Link doesn't think the GPL is a valid contract? Fine, then they're not licensed to distribute the code at all!
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How so? Without copyright law, the GPL would have no teeth, as when you violate the GPL, it's copyright law that you'll be sued under. (As when you violate the GPL, you no longer have permission to distribute the offending code, and so are infringing copyright)
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As much as I'd like to see a legal test of the GPL (not because I think it's invalid, but because coporations will become much more willing to deal with it, once it's been proven in court), this is simply a very, very basic test of copyright law.
The thing about the GPL is that it will never be tested in court. For precisely the reason you give. Either you accept the GPL (meaning you accept it and don't think it's invalid), or you are faced with dealing with the situation under very, very basic copyri
German law system is good more often than bad (Score:2)
There are parts I really do like about the german law system. For one, it's 'loser pays all'. Which means, if you're right, it's actually reasonable to defend yourself, even if it costs a little. And this also means that big entities can't just go around sueing everybody and everything to chunky kibbles. Because if they lose, they have to pay. Which even corporations can only afford that often.
#2: Civil lawsuits over money have their amount also judged by the jury, which prevents insane am
GPL Comments (Score:2)
Something the BSD style licenses doesn't do. (i.e. take our our code we don't give a damn we are your slaves.)
By forcing contribution back into a products process and life cycle, which is what the GPL does, better products are produced because people are allowed to build on each others work.
Patent
Dlink and GPL (Score:2)
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Also legally who's responsible to release the sources: the OEM (DLink), the design house (Redsonic), or the company who probably customized the kernel for the SI8210 (Sigma)?
Dlink, or maybe even the retailer you bought it from, is distributing the product to you, so they are responsible for distributing the source to you. They can chase up the chain to get the source from whoever distributed the binaries to them, but they shouldn't be trying to deflect you up the chain and claiming no responsibility. Un
Seek Damages Already! (Score:2)
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You should have claimed you tried using a Mac. (Actually, you should have sued D-Link in small claims court, but the first suggestion is simpler.)
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(Hopefully funny for german and english speaking people alike)
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The Judge in the FSF case even said:
"[The GPL] acts as a means by which certain software may be copied, modified and redistributed without violating the