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| GPL Upheld in Germany Against D-Link |
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Friday, September 22 2006 @ 01:45 PM EDT
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Eat your heart out, haters of the GPL. The license has just been upheld in Germany again. Here's the press release. Once again, we have Harald Welte, and his lawyer, Till Jaeger, a co-founder of the Institute for Legal Issues of Free and Open Source Software (ifrOSS), to thank for insisting on folks living up to their GPL obligations. D-Link Germany GmbH on the losing side tried to allege that the GPL wasn't binding because it violated Germany's antitrust law and interfered with its contracts with third parties. Snort. I'm just a paralegal, and *I* could have told them that strategy was doomed, not that they would have listened to me. Some people have to learn the hard way.
Here's the ruling [PDF], in German, naturally. A translation in English will be available in a week from gpl-violations.org. Of course, we can't stand to wait a week, and in true Groklaw fashion a member, eisi, has already posted an unofficial translation of a significant paragraph from the ruling:
"Da die Beklagte die in Ziff 2 GPL vorgesehenen Pflichten verletzt hat, ist die auflösende Bedingung mit der Folge eingetreten, dass sie ihr Nutzungsrecht verloren hat. " [...] "Es kann dahinstehen, ob, wie die Beklagte geltend macht, die Regelung des GPL wegen Verstoßes gegen Art. 81 EGV und §1 GWB -insbesondere das Verbot von Preisbindungen und das Verbot, die Konditionen fur einen Zweitvertrag in einem Erstvertrag festzulegen -unwirksam ist. Denn dies führte gemäß §139 BGB zur Unwirksamkeit des gesamten Lizenzvertrags und hätte zur Folge, dass der Beklagten keinerlei Nutzungsrecht zustände, so dass der Kläger sie aus diesem Grund wegen Verletzung der Urheberrechte in Anspruch nehmen könnte."
A translation:
"Because the defendent has violated the designated obligations of number 2 GPL, the cancelling condition is met with the consequence, that the defendant lost his right of use." [...] "It is not decided, whether, how the defendant claims, the rulings in the GPL are invalid because of violation against Art. 81 EGV and §1 GWB - in particular the prohibition of price bindings and the prohibition of constituting conditions for a follow up agreement in a first agreement. Because this would lead, according to §139 BGB, to the nullity of the whole license agreement with the consequence, that the defendant had no right of use at all, so that the plaintiff could claim against the defendant out of violation of copyrights." "
And that's exactly what Eben Moglen has been telling you for years, isn't it? Moglen has explained for many years that the way the GPL works is this: if you don't accept it or violate its terms, you have no right to distribute at all, and if you do distribute anyway, it's a copyright violation, because only the license gives you any distribution rights.
Well, that's what the German judge said to D-Link, that if you don't accept the terms of the GPL, where's the permission to distribute at all? Even if you could prove the license wasn't legal or binding, you gain nothing, because you thereby lose all rights to distribute. Some seem to think they get to misappropriate the code if they could just get that pesky GPL out of the way. Nope. It's a package deal. And that is exactly what Moglen told you, but some just wouldn't listen. If anyone feels ambitious to translate the rest of the ruling, feel free, as always. Lawyers sometimes sneer at the GPL, because it's written in plain language to try to make it clear to nonlawyers, to programmers. Maybe that was a factor. I don't know. Sometimes companies think that the authors won't be able to defend themselves from misappropriation of their code. What the motivations were here are unknown to me, but whatever they were, they now know that the GPL will be enforced in German courts. Here's what D-Link's position was, according to the press release from gpl-violations.org: Following-up a legal warning notice, D-Link signed a declaration to cease and
desist and agreed to refrain from further distributing the product, but refused
to reimburse gpl-violations.org for expenses incurred in connection with the
test purchase, re-engineering and legal advice and representation. In the court
proceedings, D-Link claimed that the GPL is not legally binding. A quote from
the German letter of the D-Link lawyers to gpl-violations.org, dated Feb 24,
2006 can be translated as:
"Regardless of the repeatedly-quoted judgement of the district court of Munich
I, we do not consider the GPL as legally binding." Well, now they know better. Here's where you can find information on the 2004 Munich ruling upholding the GPL that he referred to. Our translator also tells me that the software in question is mtd, msdosfs and initrd. From the press release, we learn more about D-Link's theory of the case and what the court thought of it: On September 6, 2006 the district court issued its judgement, confirming the
claims by gpl-violations.org, specifically its rights on the subject-matter
source code, the violation of the GNU GPL by D-Link, the validity of the GPL
under German law, and D-Links obligation to reimburse gpl-violations.org for
legal expenses, test purchase and cost of re-engineering. Only the amount of
the legal expenses was considered too high by some insignificant amount of 300
EUR. Therefore, this decision marks a clear-cut victory for
gpl-violations.org. D-Link may file an appeal against the judgement.
Somebody must have thought that would work, that antitrust argument, some lawyer who doesn't grok how the GPL works. In essence, D-Link used two theories antiGPL netkooks have been putting forth for years on message boards on the Internet. D-Link decided to try them in real life, in a real court, and it lost. D-Link has said it will not file an appeal, according to Heise's report: D-Link, which already back in 2004 had had a run-in about a router with gpl-violations.org, argued that the GPL violated antitrust law because it featured a price fixing provision and imposed upon the licensee conditions affecting his/her/its contracts with third parties. These arguments the judges found to be irrelevant: If the GPL as a whole violated antitrust law, they observed, then any right of use to GPL-protected software would be null and void. Thus in plain English: Availing oneself of the rights granted by the GPL license while failing to recognize the duties attendant thereon – a state of affairs that Mr. Jaeger called the "expropriation of the author" – is not a lawful option.
In a talk with heise open Thomas von Baross, Managing Director of D-Link Central Europe, said his company would accept the ruling and would not file an appeal. I commend their wisdom on realizing when to quit. Better late than never. It seems you don't have to be a netkook to come up with creative theories on how to get around your license responsibilities under the GPL. Here's the bottom line: It's not your code. If you use someone's code, you have to abide by the terms of the license that comes with the code. What's so hard about that? If you were the author, that is exactly what you'd want to happen. But when folks want to grab some super wonderful code without abiding by the license, they don't see it as morally wrong? The term "free" in Free Software doesn't mean you get to do freely whatever you wish with it. The GPL tells you what you can do and what you can't. Just do it, or don't use the code. You can always write your own code. And if the GPL isn't valid for whatever kooky reason you've come up with, then you can't distribute at all. Period. End of story. But no, some folks would rather try to prove the GPL isn't legal or shouldn't be. Let's call that what it is. What would the BSA call it? They'd call it stealing. No, piracy! If it's piracy to copy and distribute to the world an MP3, and the RIAA says it is, then it's piracy to distribute someone's GPL code if you violate the license. It's the identical issue. Try distributing Microsoft's code as if it were your own and explain to them you have the right because you don't think their license terms are legally binding. Let us know how that works out for you. I'm pretty sure they let you make phone calls from prison. D-Link's spokesman told Heise it uses the GPL and has no issues with it, just with Welte's demands: D-Link had "no reservations with regard to GPL as such;" the company made extensive use of open-source software, he said. With regard to the case in question, however, there had been considerable "doubts about the lawfulness of the demands made by the plaintiff," he added. By carrying the matter through to a point where a judicial decision within the framework of principal proceedings was the only outcome – instead of coming to an out-of-court settlement, as was common in such cases – the parties involved had also contributed "an added degree of legal certainty to the topic of GPL," Mr. von Baross asserted. Uh huh. I am really tired of CorporateSpeak. You had no issues with the GPL as such, but you tried to assert in a court of law that it violates antitrust law. Well, it's nice to know you did it because you wanted to establish the GPL's validity. And you have. Thanks.
Back in July of 2003, I wrote about some GPL issues I saw in SCO's SCOsource licensing scheme, to use Novell's phrase from its court documents in the SCO v. Novell litigation. The article was called, SCO's Impossible Dream." In that article, I linked to Eben Moglen's affidavit in the MySQL court case (Progress Software Corp. v. MySQL AB, 1st Cir., No. 02-1402). He provided the affidavit to the court to explain how the GPL works. He helped write it, so he ought to know what the intention is. You lawyers out there might find it a useful resource. And I'd like to reproduce some relevant paragraphs again: 16.The GNU General Public License ("GPL") is the legal heart of the free software movement. The goal of the GPL is to use copyright law to create a "commons," a collection of shared resources to which anyone can add, and from which anyone can borrow freely, but from which nothing can be permanently removed. This concept, of using copyright to create a commons, rather than a domain of exclusive ownership, is sometimes called "copyleft," and the GPL is an example of one form of "copyleft license." A copy of the current version 2 of the GNU GPL, first published in 1991, is attached hereto as Exhibit B.17. Free software is not in general in the public domain. If contributors to free software projects were placing their code in the public domain, it could be immediately incorporated by others into proprietary, non-free projects, from which those appropriators could derive value without returning anything to the commons. Instead, free software is copyrighted, but through the terms of the GPL, copyright is used to protect the common interest without excluding anyone from the rights to execute, copy, modify, and redistribute that are of the essence to free software. 18. The GPL is a very simple form of copyright license, as compared to other current standards in the software industry, because it involves no contractual obligations. Most software licenses begin with the exclusive rights conveyed to authors under copyright law, and then allow others access to the copyrighted work only under additional contractual conditions. The GPL, on the other hand, actually subtracts from the author's usual exclusive rights under copyright law, through the granting of unilateral permissions. When a work of copyrighted software is released under the GPL, all persons everywhere observing its terms are unilaterally permitted all rights to use, copy, and modify the software. Because these permissions are unilaterally given, users who wish only to use the software themselves, making copies for their own use, or who wish only to make derivative works for their own use, do not have to "accept" the license, because they have no reciprocal obligations under it. 19. If a user wishes to redistribute software she has received under the GPL, whether in modified or unmodified form, the license permits that activity as well. Here, however, the permission is qualified by three primary conditions: - Redistribution must itself occur under GPL and only GPL, with no additional license conditions. (See Exhibit B, §2(b));
-
Redistribution must include "source code," the human-readable form of computer programs that allows programmers to understand and modify computer programs for themselves, as opposed to "object code," which is the "machine language" version of computer programs that is very difficult for programmers to understand or modify. (See Exhibit B, §3(a)); and
- Redistribution must include a copy of the GPL, so that users are aware of their rights to use, copy, modify and distribute, and so that anyone engaged in redistribution is also aware of the conditions under which redistribution is permitted. (See Exhibit B, §1).
20. As a result of these conditions on redistribution, the GPL achieves the goal of creating a commons. Anyone can copy and modify program code released under the GPL, but no one can combine that program code with any other code and then release the combination on non-GPL terms. Anyone who contributes program code to a GPL-based programming project knows that her contribution will remain freely available for others to use, fix and improve, but that no one will be able to exclude others from having the same rights. The GPL uses copyright doctrine to achieve the result of the principle that we should all "share and share alike." Thus anyone who combines GPL-licensed software with other program code must release the combined work under GPL, and must provide the source code for the entire derivative work. 21. Because anyone in possession of a program released under GPL must be in actual possession of the license itself, the licensor is entitled to presume that anyone engaged in redistribution is actually on notice of the only terms on which redistribution is permitted. Redistribution on any other terms is intentional violation of the GPL. (See Exhibit B, §5). 22. . . . Under §4, any licensee who violates the GPL loses his right of distribution, until such time as that right is restored by affirmative act of the copyright holder. The distributees of that licensor, however, retain their rights under the license, including their rights of distribution. (See Exhibit B, §4). . . . And here's clause 4, the paragraph in the GPL the court upheld: 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance. Some of this language will be changing in GPLv3, by the way, so you probably will want to pay attention to the changes once they are firm if the code you wish to use someday is under that later version. You can find links to that material on Groklaw's GPL page.
I offer this information in the hopes that it will be useful to lawyers who are not specialists in FOSS licenses. You can't be experts in all areas of the law, and that's not a crime. It's just real life. One of the goals of Groklaw is to help get the lawyers and the geeks together, so they can learn from one another and help each other out. And I believe it was a lawyer, Abraham Lincoln, who said that the best lawyers are the ones who keep their clients out of court. Here are some of his notes for a law lecture in 1850: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it....
There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief -- resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave. Hmm. Memo to SCO....
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| Authored by: feldegast on Friday, September 22 2006 @ 03:20 PM EDT |
So PJ can fix them
---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 22 2006 @ 03:26 PM EDT |
| Long live the GPL [ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 22 2006 @ 03:44 PM EDT |
| It appears that these developers do not like it. Link [ Reply to This | # ]
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| Authored by: Yossarian on Friday, September 22 2006 @ 03:53 PM EDT |
>that antitrust argument,
Can somebody please explain, to non-lawyers, the anti-trust
argument? The way I understand anti-trust law, which may,
or may not, be true, is that the goal is to prevent price-
fixing. E.g. when Standard Oil fixed the price of gas, the
Fed broke it. When AT&T fixed the price of long distance
calls, the Fed broke it. The result in both case was
increase in competition and reduce in price. E.g. the price
of long-distance phone calls went down after the break up
of AT&T.
I don't see anti-trust issue in GPL. E.g. I can, *legally*,
buy Red-Hat latest and greatest Linux, add my own changes,
or no changes at all, and sell it, under GPL for any price
I like. As long as I follow GPL, nobody can force me to
fix the price, even if I give code for free.
So, what is the legal argument of "anti-turst prevents GPL"?
(I don't ask if the argument is valid. I just try
to understand what is the argument.)[ Reply to This | # ]
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- Price fixing - Authored by: Anonymous on Friday, September 22 2006 @ 04:34 PM EDT
- Anti trust - Authored by: Anonymous on Friday, September 22 2006 @ 04:40 PM EDT
- Anti trust - Authored by: Anonymous on Friday, September 22 2006 @ 05:27 PM EDT
- Anti trust - Authored by: Anonymous on Friday, September 22 2006 @ 09:16 PM EDT
- Anti trust - Authored by: Anonymous on Saturday, September 23 2006 @ 07:10 PM EDT
- Anti trust - Authored by: tknarr on Friday, September 22 2006 @ 04:45 PM EDT
- Anti trust - Authored by: PM on Friday, September 22 2006 @ 04:51 PM EDT
- Anti trust - Authored by: Anonymous on Friday, September 22 2006 @ 04:52 PM EDT
- Anti trust - Authored by: Alan(UK) on Friday, September 22 2006 @ 04:54 PM EDT
- "...price-fixing clause..." - Authored by: tiger99 on Friday, September 22 2006 @ 05:16 PM EDT
- I disagree - Authored by: davogt on Friday, September 22 2006 @ 06:23 PM EDT
- Anti trust - Authored by: arch_dude on Friday, September 22 2006 @ 07:42 PM EDT
- Anti trust - Authored by: PJ on Saturday, September 23 2006 @ 12:08 AM EDT
- Indeed - Authored by: Alan(UK) on Saturday, September 23 2006 @ 12:23 PM EDT
- Indeed - Authored by: Anonymous on Monday, September 25 2006 @ 08:03 AM EDT
- Indeed - Authored by: Anonymous on Monday, September 25 2006 @ 07:37 PM EDT
- The Daniel Wallace ruling - Authored by: hardmath on Friday, September 22 2006 @ 06:11 PM EDT
- Not about price - Authored by: Anonymous on Friday, September 22 2006 @ 07:38 PM EDT
- Not about price - Authored by: Anonymous on Saturday, September 23 2006 @ 07:57 AM EDT
- Anti trust - Authored by: Anonymous on Sunday, September 24 2006 @ 08:49 AM EDT
- Anti trust - Authored by: Anonymous on Sunday, September 24 2006 @ 03:22 PM EDT
- Anti trust - Authored by: Sique on Monday, September 25 2006 @ 03:58 AM EDT
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| Authored by: bigbert on Friday, September 22 2006 @ 03:53 PM EDT |
Good work! Thanks, and keep it up!
---
LnxRlz![ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 22 2006 @ 03:57 PM EDT |
So put the off topic things here:
And here is the first item:
What do you think about the prohobition of foie gras
(goose/duck
liver from force feed gooses/ducks) in the city
limits of Chicago?
I dont like liver so I would not mind it, when it would not
cut into my
right to decide what to eat! As the customer
should decide which product is
bought.
And I can see Capone laughing in his grave and gangs
forming
to smuggle the liver in milk cans into the town and
sell it for a much to
high price.
Link
to
coverage
cu cinspor [ Reply to This | # ]
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- Off topic here - Authored by: red floyd on Friday, September 22 2006 @ 04:11 PM EDT
- Patricia Dunn resigned ! - Authored by: Anonymous on Friday, September 22 2006 @ 04:40 PM EDT
- Link to this story - Authored by: Anonymous on Friday, September 22 2006 @ 04:55 PM EDT
- Patricia Dunn resigned ! - Authored by: PM on Friday, September 22 2006 @ 05:00 PM EDT
- Effective immediately - Authored by: hardmath on Friday, September 22 2006 @ 05:01 PM EDT
- Hurd: "I didn't read the report." Bush: "I didn't inhale." - Authored by: jplatt39 on Friday, September 22 2006 @ 05:03 PM EDT
- Hurd: "I didn't read the report." Bush: "I didn't inhale." - Authored by: Anonymous on Friday, September 22 2006 @ 05:07 PM EDT
- Clinton: "I didn't inhale." - Authored by: Anonymous on Friday, September 22 2006 @ 05:11 PM EDT
- Yes, but... - Authored by: rick stockton on Friday, September 22 2006 @ 05:23 PM EDT
- Yes, but... - Authored by: Anonymous on Friday, September 22 2006 @ 06:02 PM EDT
- Yes, but... - Authored by: Kevin on Friday, September 22 2006 @ 08:14 PM EDT
- Yes, but... - Authored by: Anonymous on Friday, September 22 2006 @ 08:20 PM EDT
- Yes, but... - Authored by: PJ on Saturday, September 23 2006 @ 12:12 AM EDT
- Yes, but... - Authored by: Anonymous on Saturday, September 23 2006 @ 12:25 AM EDT
- Yes, but... - Authored by: PJ on Saturday, September 23 2006 @ 03:07 AM EDT
- My mistakes - Authored by: jplatt39 on Friday, September 22 2006 @ 09:20 PM EDT
- What's Done is Done, so Dunn is Done. Let the dunning begin. n/t - Authored by: Anonymous on Friday, September 22 2006 @ 08:22 PM EDT
- Pattie or Patsy? - Authored by: Anonymous on Friday, September 22 2006 @ 09:19 PM EDT
- CNet - Perspective: HP's lame mea culpa - Authored by: Brian S. on Friday, September 22 2006 @ 09:24 PM EDT
- Patricia Dunn resigned ! - Authored by: SilverWave on Saturday, September 23 2006 @ 04:56 AM EDT
- An interesting anecdote about 'law offices' in general... - Authored by: Groklaw Lurker on Friday, September 22 2006 @ 05:56 PM EDT
- Software patents back to haunt Europe - Authored by: kh on Friday, September 22 2006 @ 06:19 PM EDT
- THIS IS IMPORTANT - Authored by: Anonymous on Saturday, September 23 2006 @ 08:30 AM EDT
- Another new 52wk low for SCOX - Authored by: Boundless on Friday, September 22 2006 @ 07:57 PM EDT
- "Earlier last week, Hurd barely mentioned the widening boardroom scandal...." - Authored by: Anonymous on Friday, September 22 2006 @ 08:53 PM EDT
- About (expletive deleted) time - Authored by: fudisbad on Friday, September 22 2006 @ 10:47 PM EDT
- NBR mentions patent obviousness SCOTUS case upcoming - Authored by: Anonymous on Friday, September 22 2006 @ 11:35 PM EDT
- Programmer says that he wrote code to rig Florida 2000 election - Authored by: Anonymous on Saturday, September 23 2006 @ 10:19 AM EDT
- good contradiction you came up with! - Authored by: Anonymous on Saturday, September 23 2006 @ 03:36 PM EDT
- touché - Authored by: troll on Sunday, September 24 2006 @ 04:45 AM EDT
- There is no attorney-client priviledge in the US - Authored by: Anonymous on Saturday, September 23 2006 @ 05:00 PM EDT
- Very OT: a four legged chicken - Authored by: Anonymous on Saturday, September 23 2006 @ 05:01 PM EDT
- You obviously never had foie gras. - Authored by: Anonymous on Saturday, September 23 2006 @ 05:26 PM EDT
- Play mp3 on linux - Authored by: Anonymous on Sunday, September 24 2006 @ 09:57 PM EDT
- Horrid articles about MS and EU - Authored by: Anonymous on Sunday, September 24 2006 @ 11:36 PM EDT
- SCO shares crash almost 20% - Authored by: Anonymous on Monday, September 25 2006 @ 04:30 PM EDT
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| Authored by: Anonymous on Friday, September 22 2006 @ 03:59 PM EDT |
In GERMANY no less!!! I see now why you wouldn't take up the cause yourself
when you were told to putup or shutup, or is it possible you had something to do
with this? If so, that would be the icing on the cake, eh?
I do commend you though, you stuck to your arguments even when you were shown to
be repeatedly wrong. Some times you win, but this time you lose.[ Reply to This | # ]
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- I am beginning to like Germany - Authored by: Anonymous on Friday, September 22 2006 @ 04:43 PM EDT
- To terekhov - Authored by: Anonymous on Saturday, September 23 2006 @ 07:30 PM EDT
- To terekhov? - Authored by: Anonymous on Sunday, September 24 2006 @ 11:51 AM EDT
- To terekhov? - Authored by: Anonymous on Sunday, September 24 2006 @ 03:28 PM EDT
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| Authored by: red floyd on Friday, September 22 2006 @ 04:12 PM EDT |
For those who have Anonymous comments blocked.
---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.
[ Reply to This | # ]
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| Authored by: Alan(UK) on Friday, September 22 2006 @ 04:18 PM EDT |
| Lawyers sometimes sneer at the GPL, because it's written in plain language to
try to make it clear to nonlawyers...
If it was not written in plain
language, what should it be written in? True, it is a legally binding document,
but the software in question could have been released under the GPL anywhere in
the world and the GPL affects the distribution of the software anywhere in the
world.
It would have been foolish to have written it in the legalese of any
particular jurisdiction. Just imagine the difficulty of a court in Italy trying
to to work out what was meant by a licence issued in Brazil that was written
using American legal terms. The Latin bits alone leave enormous scope for
confusion - the words could have three different legal meanings (Italian,
Brazilian, and American) as well as possibly having three different everyday
meanings, as well as being modern Italian words, and as well as having their
original Latin meaning.
I should imagine that lawyers hate it because the
only way to make money out of it is to lie about its meaning to the client (to
get the job in the first place) and then have their noses rubbed in it (does
that translate into American?) by the judge who points out that perhaps it means
what it says. I think the loss of reputation exceeds any fee charged.
All
this nonsense probably comes about because nobody bothered to understand the GPL
(which to most people is written in a barbarian tongue) until after the
offending product is well advanced. The result is, having failed to get away
with it unnoticed, some silly court case with a lawyer trying to argue that
black is a dark shade of white. [ Reply to This | # ]
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- if more laws - Authored by: Anonymous on Friday, September 22 2006 @ 08:02 PM EDT
- I wish to agree - Authored by: Ed L. on Friday, September 22 2006 @ 11:49 PM EDT
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| Authored by: Anonymous on Friday, September 22 2006 @ 04:42 PM EDT |
"Try distributing Microsoft's code as if it were your own
and explain to them you have the right because you don't
think their license terms are legally binding. Let us know
how that works out for you. I'm pretty sure they let you
make phone calls from prison."
This brings up an interesting point. If tomorrow I
started distributing free copies of MS office on the
internet, The next day I would be in jail...
So why aren't the execs at D-Link in jail? I'm not
suggesting they should be in jail, but why the double
standard?
-lazy[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 22 2006 @ 05:24 PM EDT |
"Even if you could prove the license wasn't legal or binding, you gain
nothing, because you thereby lose all rights to distribute. Some seem to think
they get to misappropriate the code if they could just get that pesky GPL out of
the way. Nope. It's a package deal."
It's not a package deal. A license can have one clause that's held to be invalid
while the rest is upheld. Some jurisdictions only allow this when the license
has an explicit severability clause, others automatically apply such clauses.
In the case of a copyright license, the argument would be
1) the grant of rights is legally valid
2) the obligation to make source available is unenforceable because of $REASON
3) one unenforceable clause does not invalidate the whole license
4) therefore I'm not held to that obligation yet I have a valid grant of rights
The $64,000 question of course is what $REASON could be when the license is the
GPL.
The usual starting point for lawyers is stating that something is against
antitrust law or misuse of copyright. The D-Link lawyers didn't say *the GPL* is
against antitrust law, but only that *the licensee's obligations* under the GPL
were unfair.
[ Reply to This | # ]
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| Authored by: AdamBaker on Friday, September 22 2006 @ 05:36 PM EDT |
PJ said "Try distributing Microsoft's code as if it were your own and
explain to them you have the right because you don't think their license terms
are legally binding."
I'm not sure that is a great analogy - MS's license agreement is if anything
weaker than the GPL because of the terms it attempts to impose. It may even
constitute an Unconscionable Contract.
Potential Weaknesses
1) The license for OEM software attempts to tie itself to hardware purchases in
a way that potentiallity denies you your first sale rights - it has been
suggested it may be legal to sell on a legally obtained copy of the software
even under circumstances when the license says you can't. (You do have to not
retain a copy though).
2) It has been suggested that in the event MS carried out their threat to
withdraw Windows from sale in Europe to avoid their anti trust obligations their
copyright could be voided to protect European businesses who need Windows. I'm
not sure if any European countries have laws that provide an equivalent to
Eminent Domain but if they do it could be argued that the loss to MS is nil
because they weren't going to sell the product anyway.
3) The license terms usually include an offer to provide a refund if the user
doesn't accept the license but such a refund is usually almost impossible to
obtain. Such a failure could constitute an act of prior breach enabling the
purchaser to avoid some of their obligations under the license. On licenses that
allow restricted redistribution like some of the libraries supplied with Visual
Studio it MIGHT be possible to make an argument that that allowed some
redistribution that marginally exceeded what the license allows.
These are all subtle points and not anything I'd want to rely on but I think
they do make the point that the GPL is if anything stronger than MS's license
not just "as strong".[ Reply to This | # ]
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| Authored by: overshoot on Friday, September 22 2006 @ 05:52 PM EDT |
| You had no issues with the GPL as such, but you tried to assert in a court of
law that it violates antitrust law. Well, it's nice to know you did it because
you wanted to establish the GPL's validity. And you have. Thanks.
PJ,
one of the drawbacks to the US system of adversary justice is the Constitutional
requirement that the courts restrict themselves to "real" cases. That means
that all too often we fall afoul of "hard cases make bad law."
How many
times have we wished for a "good" test case to settle some iffy law, but the
"right" case never seemed to come along? The one that comes to my mind is the
Reimerdes case, where 2600 was such an unsympathetic defendent
that some very bad judgments on Internet law ended up not being
appealed.
Well, in this case (think what you will of D-Link) we seem to have
gotten a clear precedent between parties who seem to be OK with the way the
Court settled their disagreement.
Hey, it happens. Maybe it should happen
more often. [ Reply to This | # ]
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- Moot Court - Authored by: PJ on Saturday, September 23 2006 @ 12:44 AM EDT
- Moot Court - Authored by: Anonymous on Saturday, September 23 2006 @ 10:07 AM EDT
- Moot Court - Authored by: Anonymous on Saturday, September 23 2006 @ 10:50 AM EDT
- Moot Court - Authored by: Anonymous on Saturday, September 23 2006 @ 09:06 PM EDT
- The other problem - Authored by: Anonymous on Saturday, September 23 2006 @ 12:04 PM EDT
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| Authored by: Anonymous on Friday, September 22 2006 @ 06:01 PM EDT |
When I go to the D-link website (see below), I am offered a 'firmware' file that
obviously ('strings DSMG600_firmware_101.bin') contains at least the following
GPL licensed software: the Linux kernel, samba, the 'popt library', e2fslibs,
and probably a lot more.
But the website doesn't mention source code for it anywhere, not for download
and not offered in any form.
http://www.dlink.com/products/support.asp?pid=377&pv=68&sec=0
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| Authored by: Jude on Friday, September 22 2006 @ 07:53 PM EDT |
| This isn't the first time D-Link has pulled a less-than-admirable stunt.
It
wasn't long ago that D-Link was caught hard-coding the IP addresses
of
various NTP (Network Time Protocol) servers into their routers
without
bothering to get permission from the people running the servers.
One of
the servers they used was run by an individual who never intended
to
serve a large client base, and the poor guy got clobbered by the
bandwidth
charges being run up by millions of D-Link routers coming to his
server for
the time of day.
The worst part is that D-Link gave the guy
the runaround after he finally
figured out what was going on. They wouldn't
even talk to him until he
went to the press with his story.
Here's one
of the articles that was published about this episode:
L'Inq: Man takes on
D-Link publicly, with time not on his side
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| Authored by: arch_dude on Friday, September 22 2006 @ 08:12 PM EDT |
OK, let's go with the generic conspiracy theory again.
D-Link really does get it, but their business model depends
on the GPL. They therefore want to ensure that the GPL is
really valid, but the FUDsters have been repeating ad
nauseam the refrain that "the GPL has never been upheld in
court!"
D-link notes that the German courts appear to be
GPL-friendly, so they arrange to "lose" a GPL case there,
suffering a trivially small monetary judgement. The money
actually goes to an organization that is working
dilligently to forward D-Link's ultimate goal of validating
the GPL in court.
No, I don't believe it either, but it's a pretty good
conspiracy theory :-)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, September 22 2006 @ 11:15 PM EDT |
The comparison to music piracy does bring about one theoretical attack on the
GPL, although I can't see a serious application: fair use rights. I'd guess it
could be used if someone wanted (hypothetically) to take some piece of GPL code
and do a clean-room reverse engineering of it; the "dirty" team, under fair use,
have the right to write up a description of how the (copyrighted but not secret)
GPL code works, which the "virgin" team can then use to write a non-GPL version.
Not very interesting until the GPL becomes a bit bigger.
Anyone see a
more practical use for this "attack" on the GPL, or reasons there could be no
"fair use" of GPL published copyrighted code without dragging in the whole GPL?[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 23 2006 @ 01:04 AM EDT |
A moral tone ought to be infused into the profession which should
drive such men out of it....
Ahh the old jokes are the best
and nobody tells 'em like Abe tells 'em. Still, it's nice to have something to
wish for.
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| Authored by: Anonymous on Saturday, September 23 2006 @ 05:34 AM EDT |
Let's call that what it is. What would the BSA call it? They'd call it
stealing. No, piracy!
Let's not reinforce the BSA's lies by repeating
them, OK?
Copyright violation is copyright violation. It's not stealing, and
it's not piracy. All that those three things have in common are that they are
all illegal. So is arson. So is possession of certain chemical substances. It is
no more correct to say "copyright violation is stealing" or "copyright violation
is piracy" than it is to say "copyright violation is arson". [ Reply to This | # ]
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| Authored by: turing_test on Saturday, September 23 2006 @ 02:45 PM EDT |
I'd just like to point out that this ruling dovetails nicely with IBM's strategy
in the SCO case. In this regard, IBM has two
counterclaims that operate as a team:
- Seventh Counterclaim:
Promissory Estoppel
- Eighth Counterclaim: Copyright Infringement
As
regards the validity of the GPL, SCO is in a 'pick your poison'
situation.
If SCO denies that the GPL applies here, to avoid the seventh
counterclaim, it lays itself open to the eighth counterclaim of copyright
infringement, since it has been distributing IBM's code without a license. This
is just the situation that the German court ruled on.
If SCO accepts that
the GPL applies here, then all of its Linux copyright claims go by the board, as
it has granted a public license by distributing the code.
SCO being SCO, we
can expect them to argue, as D-Link did, that it should get all of the benefits
of the GPL while avoiding any of the duties that come along with it. I don't
expect SCO to fare any better with this argument than D-Link did.
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| Authored by: Anonymous on Saturday, September 23 2006 @ 10:37 PM EDT |
Dear Mr. Durd;
Your statements at the press conferences on Friday, 22, September,
2006, imply purgery.
You state that you received "verbal" and "written" advisense
on
the investigatin of the board members, HP employees and
memebers of the Press.
You state that you "ignored the written report."
Your said nothing about the "verbal!"
Did you likewise ignore the "verbal report?"
Mr Hurd, Why should you be in recievance of the titles,
Chairman and Chief Executive Officer, and
Chairman of the Board of Directors? ...
... When it was you who orchastrated the the firings
of Fionia, Dunn, Perkins and Keyworth!
Mr. Hurd, in all fairness, and I might add that you
of all people do not deserve fairness, I would
advise you to pleade to the US Senate, the 5th
Amendment. Do you know about the, 5th Amendment,
Mr. Hurd?
Probably not, given your up-bringing. But, heaven
help us, perhaps in the next few day, you, will
begin to understand.
Toodles![ Reply to This | # ]
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| Authored by: gbl on Sunday, September 24 2006 @ 05:34 AM EDT |
| Curious article here.
Consider SCO, a small Swiss-based
'vulture' firm that had bought the Intellectual Property (IP) rights to a
particular version of Unix and threatened Linux users with lawsuits over
infringement of those rights unless they agree to pay substantial licensing
fees. IBM, which was one of the prime corporate sponsors of Linux as well as the
target of a lawsuit by SCO that sought USD 1 billion in damages, alleged in
mid-2003 that SCO was in cahoots with Microsoft.
The claim
that SCO is Swiss is from the orginal paper, "Dynamic Mixed Duopoly: A Model
Motivated by Linux vs. Windows" which can be seen here[pdf].
Now, I've been following the SCO case for years and have
never seen a claim that SCO was a Swiss company before.
---
If you
love some code, set it free. [ Reply to This | # ]
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| Authored by: cybervegan on Sunday, September 24 2006 @ 07:42 AM EDT |
This is a genuine, though theoretical question (anyone who knows me from my past
Groklaw posts will know I'm a fervent GPL supporter).
Since copyright *expires* in most jurisdictions, often 70 years or so after the
death of the author, at some point, GPL'd software will contain out-of-copyright
(i.e. public domain) contributions.
So, how do people's fair-use rights wrt out-of-copyright works pan out in this
scenario?
With extensive changelogs available, it may be possible to extract only the
out-of-copyright parts of a project. They may or may not be useful, of course,
but none-the-less it may be possible. As the GPL can't trump the copyright laws
upon which it is built, I'm assuming this is reasonable, at least in theory, if
not practise. A logical extension of this is to simply use a whole version which
is sufficiently old to have completely expired its copyright term.
We've probably got another 50+ years to work that one out, so no hurry ;-)
In partial answer to my own question, I suppose you could say that the GPL is
furthering the goals of copyright law by potentially preserving source code for
such long periods (barring bit-rot). In 150 years time, FOSS code may be all
that cyber-historians have available to track the development of software in the
late 20th and early 21st centries... for things like DeCSS, this may be the only
way our children's children's children will have to view DVD's or understand the
paranoia of our times! (If they survive that long).
Just some Sunday ramblings!
-cybervegan
---
Software source code is a bit like underwear - you only want to show it off in
public if it's clean and tidy. Refusal could be due to embarrassment or shame...[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 24 2006 @ 10:07 AM EDT |
Its been aid elsewhere. Who's code was it. Who's project is it. Did FSF write
any of the code?
This is the danger when technical and political opinions (and open source is a
combination of the two in many ways) become (quasi-) religious concepts.
When I played a lot of roleplaying games RPGs in the 1980s we called it
"one true way"-ism. They wanted you to play the rules one way - it was
appauling if you even entertained a different viewpoint.
The FSF have done good work over the years - and quite a lot of odd stuff too.
Linus has done a great deal by planting the seed that is Linux AND doing more to
move it on its way to bigger & better things.
If you look around the often praised firms that make money from open code and/or
free software don't use the GPL - or complicate the bundle so its hard to get
the GPL bit back out (eg. Apache, MySQL, RedHat). I once read ALL the redhat
legal stuff to work out how you'd distill out the trademarked and proprietary
bits - I couldn't identify which bit was which. The guys who did later on (eg.
CentOS) cannot even mention that their system is the public 99.9% of redhat.
It would make a lot more sense to me to tackle these types of issue, rather than
change the license so that it offends the most significant Open&Free project
there is (other than OpenOffice). [ Reply to This | # ]
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- Go LINUS! - Authored by: Anonymous on Monday, September 25 2006 @ 03:44 AM EDT
- Go LINUS! - Authored by: PJ on Monday, September 25 2006 @ 05:21 AM EDT
- Go LINUS! - Authored by: Anonymous on Monday, September 25 2006 @ 10:17 PM EDT
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| Authored by: Peter Baker on Sunday, September 24 2006 @ 01:47 PM EDT |
I have but one problem with this whole story: who advises these people? If the
GPL is so exceedingly clear (even in 'normal' English), who advised D-Link to
try it anyway?
Was it really D-Link who dreamt up this challenge (as they don't appear to gain
much from it other than negative publicity) or was that done by their legal
advisors?
If legal advisors = people who earned fees from taking this subsequently to
court I would start to ask conflict of interest questions - and so should
D-Link.
Just musing alternative paths..
---
= PB =
"Only a man can suffer ignorance and smile" - Sting
(Englishman in New York)[ Reply to This | # ]
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