Recent Judicial Milestones of the GNU GPL
24 July 2007
by Dr. Julia Küng

Once again a German court has confirmed the validity of the GNU general Public License (version 2.0): The First Regional Court in Munich decided against the Luxembourg-based Skype Technologies SA, well known as an Internet telephony provider, on the basis of a complaint brought by Harald Welte (the founder and operator of GPLviolations.org). Skype was accused of engaging in the distribution of GPL software without simultaneously providing the source code royalty-free, and without attaching the text of the GPL license.(Decision 7 O 5245/07, which has not yet gone into force). The judgement is of interest because the GPL was enforced not only against a German violater of the law, but against a company based abroad. In addition, the judgement makes it unmistakably clear that an only approximate conformance to the GNU GPL is not sufficient, but also that violations of license details lead to the loss of rights for the license holder, and consequently make the use of GPLed software illegal.

Background:

The source of the conflict was the fact that the SMCWSKP 100 VoIP phone made by SMC Networks was being offered for sale on the website of Skype Technologies SA (the respondent). According to the court's findings of fact, the vendor of the VoIP telephone was a Spanish distribution enterprise, which used the website of the respondent for promoting its sales. The firmware of this VoIP telephone uses the Linux operating system, and it included two programs to which Harald Welte (the applicant) held exclusive application rights. The two programs are free software, which may be used according to the terms of the GNU GPL version 2.0.

In accordance with section 1 of the GNU GPL, the licensee may distribute the software only on condition that a copy of the license text is included. In the selling the VoIP telephone at the root of this conflict, the text of the license was not included. Furthermore, this VoIP phone was being distributed contrary to the GNU GPL terms concerning the distribution of object code. Section 3 of the GNU GPL permits the distribution of object code, but only if the licensee fulfils certain conditions. The distribution of software as object code conforms to the GPL only if the complete machine readable source code [sic] is provided at the same time on a usual medium for data exchange, and if the general terms of the GPL concerning the distribution of GPL licensed software are being observed. The way this VoIP telephone was offered for sale did not conform to these requirements.

The court found that after the respondent had learned that the promotion of the VoIP telephone was in conflict with the GPL, he began selling it with a supplementary sheet. On this document it was noted that the VoIP phone contained software which was licensed under the GPL or LGPL. Further it drew attention to where on the Internet one could find the text of the license and the source code. Also mentioned were limitations to liability, and the existence of copyrights. The plaintiff was informed of the existence of this sheet only when legal proceedings were underway. The respondent was of the view that thereby all GPL obligations were adequately fulfilled, and the plaintiff therefore had no basis for proceeding with claims against him.

However, the court did not share this opinion and concluded that the GPL was being violated for several other reasons. The option of offering source code for download from the Internet is in the text of the GNU GPL (last paragraph of Section 3), but this applies only in the case that the object code is offered for download at the same location: "If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code." In all other cases, when selling software it is not sufficient to offer the source code only online.

In addition, the way the software was offered for sale violated section 1 of the GNU GPL despite the inclusion of the supplementary sheet. This section of the GPL requires that the recipient of the program must also receive the text of the license. It is therefore insufficient to only offer him the possibility of retrieving it online. Finally, in the view of the court the reference to the applicability of the GPL and GPL were too vague, particularly since the recipient of the program cannot distinguish, which of the two licenses is actually applicable. According to the court ruling, although the respondent was not the vendor of the telephone, after being made aware of the violation he was nonetheless obliged to investigate and to ensure that future sales of the VoIP telephone via his website was in conformance with the law.

For the sake of the completeness, it is also of note concerning this case that legal proceedings are also in progress at this time against the seller of the telephone, SMC Networks. The judgement in this conflict shows that the terms of the GNU GPL must be observed exactly, just like the clauses of every other contract. "Inaccuracies" in the observance of the license terms are violations of the law and make it illegal to use the software. The judgement also offers affirmation that the GNU GPL must be respected by persons resident outside Germany.