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)
Re:Violates Anti-Trust?? (Score:5, Insightful)
Re:Violates Anti-Trust?? (Score:5, Interesting)
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.
Wallace v. FSF already said it doesn't! (Score:4, Informative)
IANAL, but it would seem that a court having already decided this exact issue would pretty much kill their case. Wallace lost on summary judgment, which means that the court in that case found that, even if everything he said was true (and that was doubtful), he could not prevail.
In other words, that claim is very likely to go nowhere, fast. The judge in the Wallace case was a well-respected anti-trust expert, too.
Re:Wallace v. FSF already said it doesn't! (Score:5, Informative)
The Skype case is in Munich, Germany, a US court does not exactly set any precedent here. But I doubt the decision will be much different to how it would be if it was, as the GPL has been upheld quite often in Germany as well.
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.
The problem for Skype (Score:5, 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: (Score:3, Informative)
The terms of the GPL prohibit charging for GPL code ever, so real predatory pricing is precluded.
By 'code' here, I assume that you mean 'source'. You can charge what you like for the runtime code, provided that you also ship the source.
If you do not provide another way of providing the source code, they you can charge no more than the reasonable cost of physically making a copy. Also, once three years are up from their last shipping of runtime code, the GPL licencees can charge what they like for the source.
The point isn't that the software is free-as-in-beer, but rather that any shipped soft
Re: (Score:3, Interesting)
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
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And they got to write the specifications.
Re:Violates Anti-Trust? It's about the money. (Score:5, Informative)
This is a horrible misconception.
You can charge whatever people will pay for GPL code.
You just can't sell it to them without also granting them the code and the right to redistribute. That's it. Nothing says no money may change hands.
This is the difference between "free as in freedom" and "free as in beer". GPL code is free as in freedom, not beer.
http://www.gnu.org/philosophy/free-sw.html [gnu.org]
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:Violates Anti-Trust?? (Score:4, Funny)
Ahhh...Following the book : History for geeks
You couldn't fork communism in USSR. They didn't have any upgrade after the 1.917 version...The cosmetic changes of the 1.922 aren't worth to remember and they didn't last anyway. The massive refactoring of Stalin didn't help either. Khrushchev tried extreme programming with the cuba crisis and some clever UI interface codename sputnik...The marketing department (called politburo) ruined all his efforts few years after. In the end Gorbatchev had to sold out the assets.
As you see this is totally different from GPL. You can fork application since the beginning of GPL. See Emacs vs Xmacs.
(I love Slashdot probably the only place on earth where GPL can be seriously compared with communism.)
Re: (Score:3, Insightful)
With GPL, a single product can monopolize the market. The community (or, more exactly, the largest organized group within community, e.g. a company like RedHat) will prevent smaller companies trying to "reinvent the wheel" with alternative (perhaps closed-source) products from joining the market.
You don't seem to understand, well, anything about the issue. RedHat is a service company. Yes, they also happen to employ some people that happen to write code for GPL projects. Any code they create and distribute must be given back to the project.
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 creatin
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:Violates Anti-Trust?? (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: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?
I fought the license.... (Score:3, Funny)
Re:I fought the license.... (Score:5, Funny)
Re:Sitting on my encounter-suited butt. (Score:2)
Do Vorlons have butts?? They are energy beings!
Wearing a tie is a *sin* against man and God!
Simple Solution (Score:5, Insightful)
If you don't like GPL terms, don't use GPL software. How much simpler can it be?
Re:Simple Solution (Score:5, Insightful)
Re: (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...
Re:Simple Solution (Score:5, Insightful)
Re:Simple Solution (Score:5, Informative)
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Re:Simple Solution (Score:5, Insightful)
Re:Simple Solution (Score:4, Insightful)
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There's plenty of profit in "public good" if it means the bottom line isn't crippled by solicitor's fees.
I think that someone at Skype has realized that they are in a commodity market. Thus there is no profit in the "public good" for Skype if that public good means giving any advantage at all to their competitors. They probably think the price of the lawyers is totally worth the benefit of denying anyone else in the VOIP market access to the software changes they have made.
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
Re: (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:Simple Solution (Score:5, Informative)
Linking, even dynamic linking, doesn't get you off the hook if you distribute all of the pieces together and they don't work separately. It doesn't necessarily get you off the hook in other cases either (avoiding a long legal discussion).
However, the Skype code, at least the important part of it, isn't in the Linux kernel. It's a user-mode application and the GPL of the kernel doesn't apply to it.
Bruce
Re: (Score:3, Informative)
All of the important libraries for applications to use, like GLIBC, are under LGPL instead of GPL. You'd have to be sloppy to get a GPL library in a proprietary application.
Re: (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: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: (Score:2, Interesting)
Re:Simple Solution (Score:4, Funny)
Re:Simple Solution (Score:4, Informative)
But my exes dad was, he was the head of the anti truct division of the justice department in Los Angeles for 15 years.
He had two seminal cases: 1) He beat Howard Hughes in court and 2) he was the guy behind US. Vs. Brown Shoe which I understand was a landmark case and is required reqading for anti trust lawyers today. Never mind Reagan gutted most anti-trust law.
To run afoul of the Sherman anti trust act you must control 2% of the total means of production of something. This is clearly not the case.
This is off the top of my head. Queue NewYorkCountryLawyer dude to correct me (as usual).
Re: (Score:2)
I wonder... (Score:3, Interesting)
Anti-trust theory already tried, and failed (Score:5, Insightful)
Bruce
Re:Anti-trust theory already tried, and failed (Score:5, Interesting)
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: (Score:3, Interesting)
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.
Re: (Score:2, Informative)
Got any links? Not being a wiseass - I'm interested in the case but haven't seen a whole lot of substantial information.
Re:Anti-trust theory already tried, and failed (Score:4, Interesting)
B - shooting down the GPL - you can bet there is more behind that push than just "somebody" at Skype
great to speculate....
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:If it wasn't so dumb... (Score:5, Interesting)
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: (Score:3, Insightful)
Re: (Score:3, Interesting)
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: (Score:2)
Re: (Score:2, Interesting)
Re:Anti-trust theory already tried, and failed (Score:4, Informative)
Still, it does appear to be a stretch.
Re:Anti-trust theory already tried, and failed (Score:5, Interesting)
Not only will this not fly it is going to get flung back at those lawyers. most likely painfully.
Re:Anti-trust theory already tried, and failed (Score:5, Informative)
Re:Anti-trust theory already tried, and failed (Score:5, Insightful)
Wikipedia has a really good writeup on the differences. [wikipedia.org]
Re: (Score:3, Informative)
Re:Anti-trust theory already tried, and failed (Score:4, Informative)
Re:Anti-trust theory already tried, and failed (Score:4, Informative)
Only the copyright-owner is allowed to file a case. However, Harald Welte (author of things like IPTABLES) is german and head of gpl-violations.org.
even if Skype wins this one... (Score:2)
Fighting the only license that makes your code usage legal equals suicide.
Re:even if Skype wins this one... (Score:5, Informative)
Re:even if Skype wins this one... (Score:5, Informative)
That's not how it works.
Both Germany and the U.S. have ratified the Bern Copyright Convention (of sometime in the seventies), which made the default all rights reserved if there is no license, not public domain.
If a GPL term were found to be unlawful, it would be severed from the rest of the license, and the rest of the license would stand.
Bruce
Re:Anti-trust theory already tried, and failed (Score:5, Informative)
Re: (Score:3, Interesting)
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: (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 t
Re: (Score:3, Interesting)
Re: (Score:3, Informative)
It depends on how much stock a Munich court puts in US legal decisions. The Wallace case was a US case and according to TFA this one is in Munich. I kn
Shooting itself in the foot (Score:5, Interesting)
Mod parent up (Score:2)
Re: (Score:3, Informative)
Re:No, no and ummm ... NO (Score:4, Informative)
The GPL is *NOT* an EULA! It's a DISTRIBUTION license!!!
Re:Shooting itself in the foot (Score:5, Funny)
Re: (Score:3, Informative)
Yes, but the Artistic License does not have a specific section that GPL does. The section states that if you don't comply with the terms of the license, your rights under the license are terminated. Then it becomes copyright infringement (although the infringement might be proven incidental later on).
In short, there's a crucial difference between those licenses, so you can't compare their cas
Dumb! (Score:2)
Re:Dumb! (Score:4, Interesting)
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.
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If you use it, you have to abide by it. Just like when you install a copy of Windows on your machine. You basically have an agreement that you wont install it on like 50 computers with the same key or something unless you have volume licensing or some ot
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ian
Re:Dumb! (Score:4, Informative)
Re: (Score:2)
You can dual-license your own code, of course, with one version released under the GPL and another version, derived from the same codebase, under a completely closed license. But the scenario in the grandparent was that a company could incorporate other users' changes back into the closed release. They can't: you can't dual-license, and then take changes made by other people in th
Re:Almost no usefulness to doing so... (Score:3, Informative)
You get the community's version of your app, with community updates. You release under diff license without source - hold on there, buddy. You're in violation of the GPL of the community's updates to your code.
You don't own that other code. If you want to duplicate their efforts with your own code that parallels community features, fine
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That strategy breaks down as soon as they incorporate anyone else's changes into their version. The GPL doesn't require any copyright assignments, so the product would then have two separate copyright holders - and both are bound to release their changes in order to meet the GPL license on the other one's code.
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Second, you can only create a defacto standard if it is accepted within the industry. If you have a monopoly, you can effectively force (defacto) standards, but that's another story.
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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 anywa
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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.
So considered. If internal, neither company would be required to disclose source. If distributed, the original company couldn't incorporate any of those GPL changes in their own product without distributing it under the GPL themselves. Also noone can be prevented from having a license, assuming they got it legally. I assume the regular use is for all members of a cartel to only cross-license between themseelves and slam any outside competition. I guess it's not impossible to use the GPL that way but it sou
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GPL code already available? (Score:3, Interesting)
No idea what's included (there are two versions of a ~100MB
Now to get the bloody thing to talk WPA to my (also Linux-based) router thingy...
Maybe (Score:5, Interesting)
SIP is the *open* and *free* alternative (Score:5, Informative)
The alternative is to use SIP phones. And then if you don't like one provider, you get another. For example,
http://les.net/ [les.net]
is one provider I've had experience with. But you can get lots more if you want,
http://www.sipcenter.com/sip.nsf/html/Service+Providers [sipcenter.com]
With SIP you can use ANY provider and not waste money on substandard service. Heck, with SIP *you* can be your own provider with Asterisk PBX software.
There is probably more real phones available for SIP than the proprietary protocols like Skype,
http://www.grandstream.com/products.html [grandstream.com]
Very good phones from my own experience. Skype has been an obsolete VoIP solution for years now. Anyone seriously looking for a flexible VoIP solution, will only look at SIP.
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:Antitrust? (Score:4, Funny)
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How is this any different from restrictions that may exist on proprietary licenses? Doesn't WindowsCE require all changes be given to MS?
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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.
What this case is really about (Score:3, Interesting)
GPL wasn't provided .. ? (Score:2)
I went to the SMC [smc.com] site and it includes the GPL in the firmware section. What exactly is the violation?
GPL section 9 throws this case out. (Score:4, Informative)
You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.
In the GPLv2, the language was simpler: "You are not required to accept this license, since you have not signed it. However, nothing else grants you permission..." It's completely clear. You accept the terms of the GPL as written, or you don't use the code. Period.
appeal withdrawn by skype (Score:5, Informative)
http://www.linux-magazin.de/news/ [linux-magazin.de]
It seems - as usual - lawyers think they can beat down the "amateur made" gpl
Absolutely Stupid (Score:3, Insightful)
Freaks!
I say they can run, but they cannot hide.
-Hack
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.
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As you pointed out, it's Skype's software that is in question here. Skype is the one who isn't releasing the source, which they were supposed to give to SMC when they gave the binaries.
However, just to be on the safe side, I'd name SMC as a codefendent and ask them if they received their copy - and if not, to stop distributing the software/hardware bundle.
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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.