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Munich Court Grants Preliminary Injunction for GPL Infringement
Thursday, April 15 2004 @ 11:54 AM EDT

This looks like a first in Germany, a preliminary injunction granted because of infringing use of GPL software. It's important enough news to publish the entire press release, minus only the contact info, which you can obtain by clicking on the link. The Microsoft camp has been wont to quote various "experts" saying that the GPL may not be legal in Germany. It appears this judge disagrees. Ach, die lieber! Mehr FUD!

*******************************************

MUNICH COURT GRANTS PRELIMINARY INJUNCTION FOR INFRINGING USE OF GPL LICENSED SOFTWARE

BERLIN, Germany - Apr. 14, 2004 -- The Munich district court granted a preliminary injuction against Sitecom Germany GmbH (http://www.sitecom.com/). This injunctive relieve has been applied by the netfilter/iptables project (http://www.netfilter.org/).

Sitecom is offering a wireless access router product (WL-122) based on software licensed under the GNU General Public License (GPL), developed by the netfilter/iptables project.

The GNU GPL is a license commonly used for many free software projects, such as the Linux Operating System Kernel. The GPL licenses software free of cost, but requires any redistributor to provide the full source code.

According to the court order, Sitecom did not fulfill the obligations imposed by the GNU General Public License covering the netfilter/iptables software. In particular, Sitecom did not make any source code offering or include the GPL license terms with their products.

Following a warning notice, Sitecom refused to sign a declaration to cease and desist. Thus, the netfilter/iptables project was compelled to ask the court for a preliminnary injuction, banning Sitecom from distributing its product, unless Sitecom complies with all obligations imposed by the GNU GPL.

"To my knowledge, this is the first case in which a judicial decision has been decreed on the applicability and the validity of the GNU GPL", says Dr. Till Jaeger, partner of the Berlin and Munich based law firm JBB Rechtsanwaelte (http://www.jbb.de/) that represented the netfilter/iptables project in the litigation.

This preliminary injunction follows a series of out-of-court settlement agreements that the netfilter/iptables project has concluded within a short period of time. When asked about the reasons for the sudden rise in legal pressure for GPL compliance, Harald Welte, Chairman of the Netfilter Core Team states:

"We are not in any way opposing the commercial use of free and open source software. Specifically, there is no legal risk of using GPL licensed software in commercial products. But vendors have to comply with the license terms, just like they would have to with any other, even proprietary software license agreement."

About the netfilter/iptables project

The netfilter/iptables project provides state-of-the-art network security software for Linux firewalling, packet filter and network address translation (NAT), distributed as Free Software under the terms of the GNU General Public License. Being part of the linux operating system kernel, the software is running on virtually every Linux installation.

For more information on the project or the software, visit http://www.netfilter.org/


  


Munich Court Grants Preliminary Injunction for GPL Infringement | 242 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Errors and Corrections Here
Authored by: bruce_s on Thursday, April 15 2004 @ 12:06 PM EDT
---

[ Reply to This | # ]

New Links Here
Authored by: bruce_s on Thursday, April 15 2004 @ 12:08 PM EDT
New Links Here

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: resst on Thursday, April 15 2004 @ 12:09 PM EDT
Perfect timing! The GPL is finally getting its day in court...at least to some
extent. Poor Darl must be squirming.

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: tlk nnr on Thursday, April 15 2004 @ 12:13 PM EDT
The Microsoft camp has been wont to quote various "experts" saying that the GPL may not be legal in Germany.
The experts didn't claim that, they claimed:
- "no warrenty" is void. It's impossible to disclaim warrenty if loss of life and gross negligence is involved. I think this is true in the US as well.
- it may be difficult to get monetary damages, because only all copyright owners together can sue for damages: otherwise the violator might be punished multiple times for the same offence.
But injunctions and orders against future distribution are possible, and the license terms itself (no distribution unless the new code is placed under the GPL) are valid, too.

[ Reply to This | # ]

They went easy on Sitecom
Authored by: eibhear on Thursday, April 15 2004 @ 12:15 PM EDT
When they could have revoked Sitecom's rights to the code permanently, even
after the granting of this injuction, Sitecom is being offered yet another
chance to fully comply with the GPL.

Would the BSA act the same?

Éibhear

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: Anonymous on Thursday, April 15 2004 @ 12:16 PM EDT
A nice poke in the eye for the Fabulous Flying Fud
Brothers.
Perfect timing!

logdog

[ Reply to This | # ]

Too Cool!
Authored by: phrostie on Thursday, April 15 2004 @ 12:19 PM EDT
and just in time to stem the current wave of FUD.

---
=====
phrostie
Oh I have slipped the surly bonds of DOS
and danced the skies on Linux silvered wings.
http://www.freelists.org/webpage/snafuu

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: kevin lyda on Thursday, April 15 2004 @ 12:27 PM EDT
just curious, how do they handle the language issue? is the court basing its
decision on the english version of the gpl, or is there a german translation of
the gpl? is this issue covered by one of the various copyright treaties?

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: Darkside on Thursday, April 15 2004 @ 12:30 PM EDT
"The GPL licenses software free of cost"

If even the FOSS projects using it don't grok the GPL, is it any surprise that
the rest of the world doesn't?

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: oldgreybeard on Thursday, April 15 2004 @ 01:10 PM EDT
If you visit the archives of lkml (Linux Kernel Mail List) you'll find a number
of references to various vendors flaunting the GPL and that there is active
enforcement in the works. This is not only in regard to Routers but also DVD
players, etc ....

Note: The DVD issues are about to come full circle.

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: Anonymous on Thursday, April 15 2004 @ 01:18 PM EDT
Our friend Darl will spin this into a positive for them ... I can hear it now:

"See? I TOLD you companies can't operate for profit under the GPL! Look
what's happened to that poor company in Germany."

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: Anonymous on Thursday, April 15 2004 @ 01:34 PM EDT
I may be wrong, but it appears the code is available from the Sitecom website.
Find the WL-122 product, and under drivers there is a GPL download.

It's amazing what a Preliminary Injunction will do. (Of course, I have no idea
of how long it has been there).

Not knowing what the exit terms for the injuction are, I suspect this will allow
Sitecom to continue selling their product.

Leo

[ Reply to This | # ]

Is this applicable in the USA?
Authored by: Anonymous on Thursday, April 15 2004 @ 01:40 PM EDT
Can judges/courts in the US quote or otherwise use this result? If not, how is
Microsoft getting away with going after Lindows in foreign courts while it
thumbs it's nose at the judge in that case?

Can the EU commissioners rely on it? I'm thinking of comments where they hinted
Microsoft could charge for others to use their published APIs (I wonder if the
EU realizes M$ could use this to steal code developed in Europe, carte
blanche?). Could companies be forced to open their proprietary code if they are
suspected of using GPL code? Is this how we keep Microsoft from ripping off
open source workers?

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: arch_dude on Thursday, April 15 2004 @ 02:03 PM EDT
Did the copyright holders use Eben Moglen's recommended tactics? Recall the Eben
said that the legal complaint should not actually mention the GPL at all. The
copyright holder ( should merely state to the judge:
"The defendant is violating my copyright. Please make him stop."

Then the defendant must either cite the GPL, or not. If the defendant does not
cite the GPL, the defendant has no license and is therefore in violation of
copyright law. If the defendant cites the GPL as the license under which the
copying occurred, then the defendant has a REAL problem.

So, did the Judge ever need to consider the GPL at all in this particular case?
Is there a German GROKLAW denizen who can get copies of the actual complaint and
the ruling the way the US GROKLAW folks do?

[ Reply to This | # ]

better possible use for insurance ?
Authored by: Anonymous on Thursday, April 15 2004 @ 02:22 PM EDT
Instead of offering insurance to big companies which may be caught up in some
"Sco-like" fiasco, why not offer a mutualized form of defense to
SMALL/middle developpers of free/open source software who cannot always defend
themselves against infringers ?

The idea is relatively simple : every member of the fund contributes a small
summ of money and when there is a problem with the enforcement of their
copyright rights (be it GPL or any other open source license) the lawyers would
be paid by the fund.
In this cases, the plaintif (the good guys in that case) should systematically
ask that the defendant pay the costs of the trial and any summ of money gained
should be paid back to the fund.

That kind of fund would make much more sens to me than that
"insurance" project.

[ Reply to This | # ]

How could FOSS be viral?
Authored by: Anonymous on Thursday, April 15 2004 @ 02:47 PM EDT
I realize I am opening myself for a massing nuking here, but I have got to get
this out…

I am totally on board with FOSS, the concepts and the like. I very much agree
that the projects need to enforce their right to their code so that SCO cannot
happen. Here is the rub though…

My biggest fear right now is that a coder will place code from a FOSS project
into my stuff. Not even so much someone working on the project, but lazy coder
that just cuts and pastes. What are the implications here? If I the code is
from a zealotous RMS follower, would the group try to force me to open the
code?

This opens up a new tin foil hat scenario, a group that codes FOSS and works for
commercial software vendors inserting the code into various projects. After a
certain point they could sue these projects for copyright violations, getting
royalties and/or forcing them to open the code. This is a valid scenario for
both MS and for the zealotous RMS follower. MS would be more then willing to
sacrifice a few competitors to prove how viral FOSS, and a really militant
coding group would have the same will.

I know it could go the other way, like what SCO is claiming now. This is just
one way it could be flipped on us.

Bubba The Barbarian

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: inode_buddha on Thursday, April 15 2004 @ 02:48 PM EDT
Very similar to the LinkSys case here in the US. IIRC it was settled after Cisco
bought them. It never fails to amaze me how various companies seem to think the
license is worthless or unenforcable if they didn't pay money for it.

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

  • Linksys - Authored by: laforge on Friday, April 16 2004 @ 10:29 AM EDT
    • Linksys - Authored by: Arker on Thursday, April 22 2004 @ 02:33 PM EDT
Why do people seem so suprised?
Authored by: Anonymous on Thursday, April 15 2004 @ 02:53 PM EDT
Reading some of the posts here I get the impression that people are actually
suprised. I for one am not. The german judge undoubtedly looked at the license,
looked how sitecom was not aparently following the license, at least insofar as
is required for a preliminary injunction, and acted appropriately under
copyright law.

You can substitute anything you want for "license". In this case it
was the GPL, but it could have been Sun's Java(tm) license if they were
distributing a java product without Sun's permission. The key issue is did
Sitecom(tm) comply with the license terms when they distributed the product. The
judge said no, so copyright, and the injunctive relief under copyright kicked
in. No suprises there, the only suprise would have been if the court ignored
copyright law and internation treaties. Hardly likely for Germany, a Berne
signatory.

Perhaps it is that even some FOSS proponents buy at least a little into the
anti-foss retoric implying difference where there is not one, legally speaking
between a FOSS license and a propriatary license. The GPL is just another
license under copyright law.

Where there is a difference is the underlying philosophy and intent of the GPL,
where it is motivated, not by profit, but by freedom(speech). If profit results?
Well that is great too.

At the risk of making one of those overly broad predictions I expect that
similar cases will have identical results. If those person(s) or organization
distributing copyrighted works that are under the GPL, without complying with
the terms of the GPL and if they are in a country that is a signatory of the
Berne Convention for the Protection of Literary and Artistic Works, .

In my opinion there was no testing of the GPL, merely testing of copyright,
which, and I this think is worth repeating in the context of the GPL, is well
established in law and treaty.

The way I think about the GPL is this. Copyright law takes away all freedoms
(with a few fair use exceptions) to the distribution of a literary or artistic
work. The GPL gives almost all of of those freedoms back with one key exception
to insure all improvements to the GPL's software are available to everyone to
further improve. Intuitively to people conditioned to open their wallet
everytime they want to gain access to a copyrighted work this may seem like it
cannot be right, by legally it is exactly how copyright works. GPL works because
of copyright, not against it.

I am not suprised at all the court acted in this manner, it simply could not do
otherwise under law and treaty. Does it apply to the US? Of course, this is a
copyright case, the US is a signatory to the Berne Treaty and has even more
restrictive copyright laws making the GPL even stronger in the US.

The subtle strength of the GPL is that the more governments crank up the
strength of copyright law the stronger the GPL becomes.

I am sure there are many who find it infuriating that the only real way to
attack the GPL would be to destroy copyright law first. A pyrrhic victory to say
the least.



[ Reply to This | # ]

Prediction
Authored by: Anonymous on Thursday, April 15 2004 @ 03:10 PM EDT
Dan Lyons writes a followup article about this: ``FSF Thugs Redux''.

[ Reply to This | # ]

Firmware download available
Authored by: sjgibbs on Thursday, April 15 2004 @ 03:58 PM EDT

WL-122 Wireless Broadband router 100g+

Firmware Source code GPL [sic]

Note that these downloads are completely unnecessary unless you plan to do programming to alter the code.

The Zip file is BIG - 28mb when I stopped it.

I guess that "completely unnecessary" indicates some level of annoyance at the court order i.e. they don't believe their customers will want it, but I'll tell you what - if I had a business, however small, that was under attack due to a bug I'd find it very necessary and very very useful.

Well done to the iptables crew!

SJG

[ Reply to This | # ]

If Netfilter was SCO
Authored by: GLJason on Thursday, April 15 2004 @ 04:33 PM EDT
If Netfilter was SCO, they would be suing to get a customer list from Sitecom.
Once they had it, they would send out threatening letters to all the people that
bought Sitecom's routers demanding they disclose under the GPL all source code
they have ever written or they would be sued.

[ Reply to This | # ]

To PJ Ach, die lieber! Mehr FUD!
Authored by: Desert on Thursday, April 15 2004 @ 05:50 PM EDT
Ach = Expression of astonishment or surprise
die = Definate Article feminin
lieber = In this case It should be Lieber and it is equivalent to Dear in masculine.

So perhaps it would be better to say:
Ach du meine Güte. Mehr FUD!
Oh my goodness. More FUD! :-)

[ Reply to This | # ]

Copyright In Australia
Authored by: Anonymous on Thursday, April 15 2004 @ 08:01 PM EDT

Just so that people are aware, the situation related to "copyright licensing" in Australia is nicely explained in one of the information sheets provided by http://www.copyright.org.au/.

So , I will quote from the information sheet that can be found here: http://www.copyright. org.au/PDF/InfoSheets/G024.pdf

A contract is essentially a bargain between parties that the law will enforce. A contract generally involves the parties agreeing to do certain things. Dealings with copyright do not have to be by way of contract. A copyright owner, for example, can transfer ownership of his or her copyright to someone else merely by signing a piece of paper which records the transfer. Likewise, a copyright owner can grant someone an exclusive licence to use their copyright material by signing a piece of paper to this effect. A non-exclusive licence may be given merely by saying that a person can use the copyright material.

Then it goes on to define the contract:

The following four elements are needed for a contract to be binding:

  1. An offer. For example, a publisher offers an artist $200 for a licence to include the artist's work in a book.
  2. An unconditional acceptance of the offer. If the artist asks for a free copy of the book in addition to the fee, this is regarded as a counter offer and the contract is not made until this or some later offer is accepted.
  3. Some valuable consideration or benefit must pass between the parties. In this case, the publisher gets the benefit of using the work in the book, and the artist receives some money. Consideration does not, however, need to be financial receiving a free copy of the book could be sufficient.
  4. An intention to be legally bound.

All FUDsters beware - copyright licensing is much more explicitly defined in Australia than in the US. No mucking around with preemption, privity and such will work to discredit the GPL.

[ Reply to This | # ]

Bad news for SCO...
Authored by: Anonymous on Friday, April 16 2004 @ 04:21 AM EDT
So does this mean, that even if SCO win in the USA (I know, I know) and the GPL
is declared uncostitutional (even more I knows...), they may well be paying out
in every other country in the world.

[ Reply to This | # ]

Munich Court Grants Preliminary Injunction for GPL Infringement
Authored by: Anonymous on Monday, April 19 2004 @ 10:00 AM EDT
This site looks and sounds just like Slashdot. I am sorry but what makes you
think that this site is any more serious than Slashdot. It is quoted quite often
on Slashdot.

My 2 cents on the issue is that, although I am not exactly sure whether SCO has
a case or not, but right now this so called open source community, which is
pretty much slashdot community, didn't put anything against the arguments from
SCO. We see mostly FUD from the slashdot monkies. They are trying to mix
Microsoft into this case, they are trying to do various unrelated stuff, they
bash Windows, IE, etc...

We users do not care about open source FUD. We want to know exactly why SCO
doesn't have a case. Particularly I am interested in the following issues.

- Can you apply the copyright laws to this case? For example, if SCO owns the
copyrights to Unix, which seems to be the case, does it mean that they can make
the claims they are making now? For example the SCO CEO is talking about some
few implementation methods. He is saying that Linux implemented some feature
just like the SCO Unix did. He is saying that this violates their copyright.

- Also given the fact that Linux is essentially Unix, will the judge or the
jury think that Linux is really stealing something there?

In general what I really would like to understand is that, in a court, can you
claim that someonelse is violating your copyright because they did something
very similar to what you did. It is like exactly the same. Can they make a claim
there. For example, Wine vs Windows. Can Microsoft claim that Wine is violating
its IP later on?

That's really the core question to me, because it seems that SCO doesn't have
much code at all.

Another related question, still important, but mostly for IBM, does the IBM
contract say that IBM can not give away its Unix work to other Unixes? It sounds
like it is totally stupid, but SCO says it is in the contract with IBM. What's
the real answer to this question.

As I said, if someone can cut to the chase and just give a straight answer to
these questions, then I can be more confident about Linux now. The more FUD you
guys are trying to spread about SCO, the less I have confidence in Linux. You
can't make Linux a legitimate OS by your mob rules. Internet is wild, you can
say anything you want, but the court of law is not the same. You have to obey
the laws. I would really like to know the truth, nothing but the truth.

Thanks

[ Reply to This | # ]

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