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The Courts Government GNU is Not Unix News

German Court Convicts Skype For Breaching GPL 309

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 The decision is available in German at (Google translation here)."
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German Court Convicts Skype For Breaching GPL

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  • by ikegami ( 793066 ) on Tuesday July 24, 2007 @02:59PM (#19973577)
    You said the GPL was violated in a post trying to explain why it's Copyright and not the GPL that was violated.
  • by mrchaotica ( 681592 ) * on Tuesday July 24, 2007 @03:04PM (#19973643)

    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.

  • by Akaihiryuu ( 786040 ) on Tuesday July 24, 2007 @03:06PM (#19973665)
    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.
  • by Wannabe Code Monkey ( 638617 ) on Tuesday July 24, 2007 @03:06PM (#19973671)

    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?

    That's bullshit and you know it. On several occasions, pretty much every story about file trading and copyright I see posts from slashdotters saying that they believe current copyright for songs is out of touch with reality, but still wouldn't participate in illegal file trading because of the ethical issues. You don't give people enough credit.

    Plus, you're talking apples to oranges when you compare adhering to the GPL to adhering to what the RIAA wants with regards to songs. The GPL only lets you do more with the work than would otherwise be possible via copyright, the RIAA wants to restrict the rights of users even further than what current copyright does allow.

  • by timster ( 32400 ) on Tuesday July 24, 2007 @03:14PM (#19973807)
    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).
  • by mrchaotica ( 681592 ) * on Tuesday July 24, 2007 @03:17PM (#19973847)

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

  • by langelgjm ( 860756 ) on Tuesday July 24, 2007 @03:18PM (#19973861) Journal

    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.

  • by Volante3192 ( 953645 ) on Tuesday July 24, 2007 @03:19PM (#19973879)
    Umm, I think you'd find many people on /. would gladly let groups like the RIAA and MPAA hold onto copyrights if they didn't exert such a stranglehold on them and for so long.

    What we're opposed to are the draconian enforcement and perpetual lengthening of copyright expiration. I don't see where your argument has solid ground to stand on.
  • by Anonymous Coward on Tuesday July 24, 2007 @03:28PM (#19974025)
    If this catches on, support for open source will pretty much vanish. No one is going to risk having to give out the the proprietary code that makes their business profitable. The open source license will be far more of a financial liability than the cost of buying a license for a commercial product.
  • I'm a millionaire (Score:0, Insightful)

    by Anonymous Coward on Tuesday July 24, 2007 @03:29PM (#19974037)
    This morning I wrote on my garbage "If you collect this garbage, you must pay me $1 million dollars." and my garbage was collected!! They agreed to my license! I'm a millionaire!

    This is how the GPL works.

  • by WindBourne ( 631190 ) on Tuesday July 24, 2007 @03:29PM (#19974039) Journal
    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).
  • by mrchaotica ( 681592 ) * on Tuesday July 24, 2007 @03:38PM (#19974141)

    Like it are not, all those extensions that benefit the (MP|RI)AA also end up benefiting the open source world as well

    I assume you're talking about the benefit of copyleft (i.e., enforcing the sharing) versus plain permissive (e.g. Public Domain). The thing is, plain permissive really isn't all that much worse than copyleft. In contrast, (from the RIAA's perspective) public domain is very much worse than proprietary. So, having a longer copyleft term doesn't benefit the Free Software community nearly as much as having a longer copyright term benefits the RIAA.

    Besides, old music remains valuable to society. For the most part, old code doesn't.

    For both of those reasons, it is unnecessary for Free Software to have long copyright, and thus most Free Software advocates oppose copyright extensions. The fact that the RIAA et al. abuse copyright only confirms that position more.

  • 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:Not Really (Score:3, Insightful)

    by dada21 ( 163177 ) <> on Tuesday July 24, 2007 @03:43PM (#19974221) Homepage Journal
    I don't believe that copyright drives innovation -- innovation usually means providing a new direction or addition to a previous product that someone else likely designed, which was "innovated" from a previous product that another designed. New ideas based on old ideas, etc.

    What drives innovation is a desire to capture a particular market share for a demand, in effect providing a new supply stream for an existing demand, or hoping to create demand due to a new supply stream for a new product or feature.

    In my opinion, it is the combination of features, at a given price, backed by a given support structure, with promises to function at a given level of operation, that matter most. In this case, it isn't copyright that provides for a "winner" in that market of supply and demand, it is the person who releases the best combination of features+price+support+quality to a market that desires it, that wins, if that person markets the product properly.

    Copyright merely restricts competition from doing better than the originator of that particular product or service, and does the market a disservice by reducing the opportunity for other producers to do something one step better.
  • by Linker3000 ( 626634 ) on Tuesday July 24, 2007 @03:49PM (#19974317) Journal
    No, if you are having a legal discussion, stupidly large fees are usually necessary.

  • by AKAImBatman ( 238306 ) <akaimbatman&gmail,com> on Tuesday July 24, 2007 @03:57PM (#19974445) Homepage Journal

    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.
  • by Orange Crush ( 934731 ) on Tuesday July 24, 2007 @04:06PM (#19974573)

    Have you ever stop to consider when software covered under the GPL will actually become public domain and no longer be bound by the terms of the GPL?

    Assuming Linus lives to at least 70 (born in 1969), the Linux kernel will not be released into the public domain for another 101 years or so. And that's only the parts he wrote. I think it's safe to say that the FOSS community will not be harmed by the release of what will then probably be an ancient and rather quaint bit of software from the turn of the last century.

  • by 91degrees ( 207121 ) on Tuesday July 24, 2007 @04:07PM (#19974591) Journal
    Skype's business doesn't require secret proprietry code It's a service, and they givwe the client software away. They could rewrite from scratch at greater expense, and there may be a valid business reason to do so, but it's not goin to resuolt ina major impact for open source.

    Countless businesses use GPL software for all sorts of reasons - whether internally or for bespoke systems. Skype deciding not to isn't going to harm the cause. On the other hand, Skype getting away with not following the terms honourably will harm the free software movement - or at least the FSF's free software movement.
  • No conviction (Score:3, Insightful)

    by hellfire ( 86129 ) <deviladv&gmail,com> on Tuesday July 24, 2007 @04:08PM (#19974615) Homepage
    Okay, it is Germany, and I'm going to use the definitions based under American law, but I'm 99% sure the same holds true in Germany.

    A conviction is for criminal court. Copywrite law falls under civil law. No one from Skype is going to jail and no one is going to pay a huge fine to the government. However, the organization that won this case could potentially get a tidy sum.

    Let's just pile onto the inaccuracies of the summary for this article. Let's hear it for inflamatory, add-pumping summaries!
  • by Todd Knarr ( 15451 ) on Tuesday July 24, 2007 @04:18PM (#19974747) Homepage

    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.

  • by Hatta ( 162192 ) on Tuesday July 24, 2007 @04:24PM (#19974815) Journal
    GPL is permissive... But it prevents you from distributing something with out making the source available...

    The GPL is permissive the same way the 13th amendment is permissive. Both prevent you from taking away the rights of others.

    What I don't get is why is putting the source on the internet not good enough?

    Not everyone has access to the internet. Had they included a written offer to send the source code by post for a reasonable shipping charge they'd probably have been fine.

  • by cpt kangarooski ( 3773 ) on Tuesday July 24, 2007 @04:24PM (#19974831) Homepage
    It sounds fine to me (though 12 years is a bit long for software -- it might be better to have a shorter term for it, and a longer term for other kinds of works). Linux is not that important in the grand scheme of things. If getting sane copyright laws meant that people could ignore the GPL for a 12 year old version of Linux (but not for any changes that had been introduced since then) I would very happy. Incidentally, how many people do you think are interested in running or making closed forks from Linux as it existed in 1995?
  • by sumdumass ( 711423 ) on Tuesday July 24, 2007 @04:28PM (#19974881) Journal
    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.
  • by Greyfox ( 87712 ) on Tuesday July 24, 2007 @04:32PM (#19974957) Homepage Journal
    Nope, we'd cheer for an individual artist who won such a copyright case, too. The RIAA/MPAA are a bunch of ticks who live off the blood of those artists while infecting society in general with lyme disease. We like artists and programmers and copyright. We don't like ticks or lyme disease. Or Hillary Rosen, may her vagina be clogged with brillo pads. She creeps us out. We're pretty sure she's an automaton.

    We also (And I think I speak for everyone of favor of copyrights 'round here) would like to see copyrights for something made today expire sometime in our lifetime. The original copyright term was just about right. That shit was never meant to last forever. Sure that'd mean that the original windows and linux source would be going to the public domain right about now, but that's just more incentive to innovate on the part of the folks who wrote that stuff.

  • by Microlith ( 54737 ) on Tuesday July 24, 2007 @04:37PM (#19975025)
    Copyrights do not expire due to lack of enforcement, only trademarks.

    The case could easily be made that the violation was deliberately and intentionally obscured to make discovery difficult, and then the penalties could be even greater.
  • Re:Damn (Score:0, Insightful)

    by Anonymous Coward on Tuesday July 24, 2007 @05:56PM (#19976025)
    When the niggers raped the women I remained silent because I wasn't a woman
    When the niggers raped the children I remained silent because I wasn't a child
    When the niggers raped the other niggers I remained silent because I wasn't a nigger
    When the niggers raped me, I couldn't speak because there were 4 black cocks in my mouth.

    Ow, my ass hurts and my jaw is broken.
  • Re:Damn (Score:1, Insightful)

    by Anonymous Coward on Tuesday July 24, 2007 @06:23PM (#19976387)
    "Hopefully there's some monetary reward in this and that it will teach Skype and others a big lesson."

    Sadly, I'm afraid, the only lesson they will learn is to not use Linux.
  • by gd2shoe ( 747932 ) on Wednesday July 25, 2007 @04:04AM (#19980495) Journal
    Of course it does. The only thing that makes the GPL enforceable is copyright; when the copyright expires, it passes into the public domain just like everything else.

    I take that partly back. It more completely passes into the public domain that a vast majority of software, because the source is easily available (copyright expiration wont make companies release the source).

    It will (of course) be many years before any software copyrights expire (here in the States at least).

I've noticed several design suggestions in your code.