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GPL Upheld in Germany Against D-Link
Friday, September 22 2006 @ 01:45 PM EDT

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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