Munich Court Again Enforces GPL

BrianWCarver writes "Despite earlier concerns reported on Slashdot that the GPL might be particularly difficult to enforce in Germany, that country's courts now hold the distinction of having enforced it twice. The first enforcement came in 2004 when Harald Welte of the netfilter/iptables core team sought to enjoin Sitecom from distributing its WL-122 router, which used netfilter's GPL'd code, without also providing the source code and a copy of the GPL, as that license requires. The Munich Court granted Welte a preliminary injunction and then upheld that injunction (Court's decision in English pdf) and now Sitecom provides the source code from their website. Welte, who also now runs gpl-violations.org to track GPL violations, and who personally handed over warning letters at Cebit to companies not in compliance with the GPL, reported on his blog today that he has obtained a new preliminary injunction enforcing the GPL, this time against Fortinet for distributing their firewall products (FortiGate and FortiWiFi) that include GPL'd code while Fortinet refuses to release the source. Congratulations again to Welte and his attorneys!"

Comments

So, basically

[Anonymous Coward]

So basically, people go around seeking license infringers and go after them legally when they don't follow it?

How is this different from the RIAA going after its infringers? In both cases, they're intellectual property violations.

Are we only for the idea of intellectual property when it applies to GPL authors? I mean, why should I follow the GPL anyway? I'm told in one situation that copyright is flawed and evil, and in the next I'm told to follow GPL copyright.

Just playing devil's advocate here.

Re:So, basically

[Krach42]

The RIAA suing filesharers == someone taking something prohibitive and making it free

GPL developers suing people who steal their code out of compliance == someone taking something free and making it prohibitive.

There's a fundamental difference in that those stealing GPL code are stealing from EVERYONE, not just from the author.

Re:So, basically

[Anonymous Coward]

That's not the point. In both cases, they are violations of intellectual property.

Several upmodded posts in the past have stated that intellectual property is a flawed concept, as is copyright.

I just wanted to point out that the GPL is based on both the idea of intellectual property and copyright. Yet the RIAA is demonized for protecting that property while GPL authors are championed for it.

Again, devil's advocate. I think these are valid issues to raise.

Re:So, basically

[klingens]

Welte doesn't do it against private citizens by threatening them to sue, extorting money for settlements. A typical filesharer doesn't sell the downloaded music for money either.

The first thing a filesharer sees from the RIAA is a C&D letter demanding money. Welte tells the infringing companies "We know you use GPLed code in your products you sell. Clean up your act or we will do more than just remind you about it.". At this time, there is no fine to pay if the company complies.

The company in question, Fortinet, ignored him and did what all scumbags do then: they tried to hide the GPL violations by obfuscation.

Re:So, basically

[Krach42]

I'm not arguing that one is illegal and the other isn't

I'm arguing why one is good and the other is bad.

This is a personal moral decision, not a legal statement.

The RIAA has every right in the legal world to sue these people, that doesn't make it "right".

Re:So, basically

[Krach42]

Exactly, this is what's getting me about all these GPL violators.

We're not asking for money, we're asking for a simple compliance. What the hell is wrong with you that you'd rather spend money paying lawyers to defend your belief that you can take GPL code and use it how you please, than not pay a lawyer, keep your money, and just comply.

Some of these GPL violators have to be idiots, or have idiot lawyers.

Re:So, basically

[rhizome]

In the RIAA's case, they have not provided a way to conduct the same behavior legally. You're conflating compliance with prohibition.

Re:So, basically

[kebes]

Most people who support the GPL view it as copyleft, not copyright. The GPL is a compromise for a non-ideal world. Basically it is exploiting the nature of current freedom-restricting legal structures (copyright) in order to guarantee freedoms that would otherwise be removed.

In an ideal world, we wouldn't need the GPL, since everyone would play nice and information would be free. In the real world, the GPL (and similar licenses) are a compromise that safeguard our freedoms.

Therein lies the difference. It is not hypocritical to be in favor of GPL but be against conventional copyright, since the root ideology is very different in the two cases. If it were merely a legal issue, then it would be hypocritical to favor one over the other. However it is not merely legal: it is a matter of ethics and wanting the world to be a certain way. Put more simply: I can be favor of law and order and civilized society in general, but still be against certain laws in particular. This is not hypocritical.

Re:So, basically

[DickBreath]

Every time there is an article related to either the GPL or the RIAA someone raises the same argument. And it should get the same answer...

The purpose of the GPL is to ensure freedom. If it wern't for the possibility that someone monopolist would take free code and use it to make obscene profits, while at the same time making that code incompatible with the free versions, most of the "open source" or "free software" work would probably have been Public Domain instead.

The reason RMS devised the GPL was as a great way to subvert the system to force freedom.

The RIAA on the other hand is an immoral, corrupt organization that keeps artists poor, charges obscene prices for music, while using those profits to lobby congress to get themselves infinite copyright against the intent in the US constitution, and stamp out any competing form of music distribution. I don't see any moral comparison at all.

Here is an excellent article that might inform you on the subject.
New Arguments Against P2P: The Phony Moral Debate


Are we only for the idea of intellectual property when it applies to GPL authors? I'm told in one situation that copyright is flawed and evil, and in the next I'm told to follow GPL copyright.

I am for the original intent of copyright and patents in the constitution. Not what they have been corrupted into by mega corporations. Again, the GPL wouldn't need to exist if it wern't for the misbehavior of corporations. Copyright in its present corrupted form is flawed and evil. You should follow the GPL because its purpose is to ensure freedom. Your freedom even. The GPL is to ensure YOUR freedom to use and study the code.

Re:So, basically

[hchaos]

The RIAA suing filesharers == someone taking something prohibitive and making it free

GPL developers suing people who steal their code out of compliance == someone taking something free and making it prohibitive.

There's a fundamental difference in that those stealing GPL code are stealing from EVERYONE, not just from the author.

If I break the window to your car, hotwire it, and then leave it in the middle of downtown so that anyone else can drive it, too, I'm taking something prohibitive and making it free, but that doesn't make it right. Using "free" and "prohibitive" really doesn't answer the underlying question of why one author's wishes should be respected, and another author's wishes should be ignored.

The only reasons that I know of why a thing should be free are because it has no value, because it costs nothing to produce, or because the owner chooses to give it away. Neither software nor music is worthless, and both cost money and time to produce. Therefore, neither one should be considered free without the consent of the copyright owner.

Furthermore, the GPL is not a case of taking something free and making it prohibitive. There is a cost to distributing the source code along with the binaries, so it's not free to use. Secondly, nothing that a company can do will prevent you from getting the code from another source, so there is no "stealing from EVERYONE".

The real issue with GPL violations is using copyrighted material to create a derivative work without permission from the copyright holders, which is quite distinct from theft. Theft requires depriving someone of something of value. In a loose sense, music file-sharing is theft, because there would normally be an exchange of money for the right to have a permanent copy of the music, and by downloading the music, you deprive the artist of the money that they should get from this transaction. For GPL'd software, there is an explicit statement that the author does not expect any money in exchange for the right to use the code, so no theft is possible.

Re:So, basically

[Anonymous Coward]

In both cases, they are violations of intellectual property.

The very fact you use that propaganda term, a term deliberately designed to muddy the waters of copyright,patent,trademark and design law, and make people think the right to stop others distributing different copies of some information you also have is anything like a right to stop others taking something physical from you is telling. If I steal your apple, I gain an apple, you lose an apple. If I copy a program, I gain a copy, you still have your copy.

The fact an old boy network of powerful politicians, businessmen and lawyers chooses to call something "property" does not make it so.

I just wanted to point out that the GPL is based on both the idea of intellectual property and copyright.

Geez. I have to assume you have heard the FSF party line by now: "Without copyright the GPL would be unenforceable. It would also be unnecessary". The point being the GPL only exists to make the best of a bad job. As an author of GPL software (posting anonymously because you did), I would be perfectly happy for you to "violate" the terms of the GPL.. provided you couild waive all right to enforce other copyrights against others now or in future. That is to say, I'd only take action against those who could take my right to pass on information away.

Note that I only object to you having any right to censor me - I do not want a right to claim I authored a particular composition! Plagiarism is still fraud in the complete absence of copyright law.

Re:So, basically

[FidelCatsro]

I do not harbour any grudge against the Artists who want to sell music , I do however despise the tactics that the RIAA use in prosecuting innocent civilians , well i call them inocent as most of the cases are settled out of court as the people can't afford to defend them-selves so we shall never know .
Being Pro GPL /anti RIAA does not mean we have to be anti-capitalists.

Re:So, basically

[General Wesc]

That being said the intellectual property is not that of RIAA but actual artists most of whom don't even hold rights to their own creation

So the RIAA doesn't own it, and the artists don't have rights to it? I guess it would make sense that it's essentially in the public domain then.

But let's analyse that claim:

(1) The artists have no rights to the music.
(2) Because the artists own the music, the RIAA doesn't own the music, so they have no rights to the music.
Therefore (3), neither of them have rights to the music.
(4) Nobody other than the RIAA or the artists have rights to the music.
Therefore, (5) Nobody has rights to the music.

(Note: Yes, I know RIAA != label, and public domain != no rights. That's unimportant here.)

So we're claiming the artist can own the music while not having the rights to it. Where did the rights go?

The normal claim would be that the rights were assigned to another body (or to the public domain) by the artist. But we just said the RIAA (the other body) doesn't have the rights. Why?

The answer most people arguing your position give is that it was essentially not a free choice. They had no choice if they wanted to make it big*. Something like that.

But if the artist didn't freely choose to assign the rights to the RIAA, surely they still own the rights! Who would really buy the position that if I'm coerced to give away my rights to something that something goes into the public domain? They stay with the artist, darn it!

So either the artist has the rights, because they were coerced, or the RIAA has the rights because he freely assigned them to the RIAA.

Or there's no such thing as ownership of information or the right to restrict access to certain information. That's the other position, and one quite hard to defend while simultaneously telling me I can't share your credit card number or nudie photos of your girlfriend with my buddies. The right to privacy is a right to control the access to information. Same as copyright.

Sorry for the off-topic rant.

* Exactly what makes you think people have a right to 'make it big' is beyond me, as is why double-platinum indie artists don't disprove this claim.

Re:So, basically

[Anonymous Coward]

You're an idiot.

One: In a free market, things are worth what people will pay for them. I could spend years painstakingly making a car out of matchsticks. My exorbitant time and effort costs would NOT mean that my idiotic matchstick car is worth more to anyone who just wants a car to drive down the shops. Similarly, artists can rant all they want about how much time and effort they put into some work.

Two: If you break a window of my car, take it downtown so anyone else can drive it, etc. - I don't have my car anymore. If you could take a magic COPY of my car and leave me still with my car, anyone (here - maybe americans are so brainwashed that they would act differently) would rightly consider me a complete asshole if I objected.

Re:So, basically

[Anonymous Coward]

I don't listen to music that I don't have a right to listen to

There's no such thing as music you don't have a right to listen to. There's music you don't have a right to copy. There's music you don't have a right to broadcast. But there is no music that you don't have the right to listen to. Copyright regulates copying and broadcasting, it does not regulate use.

Re:So, basically

[Dun Malg]

If I break the window to your car, hotwire it, and then leave it in the middle of downtown so that anyone else can drive it, too, I'm taking something prohibitive and making it free, but that doesn't make it right.

Please, this tortured analogy comes up evry time. There are fundamental differences between real property and "intellectual" property. The two are not comparable. The former is diminished by sharing, while the latter is not. The former is covered by laws about real property while the latter is covered by (in this case) copyright law, which has no relation whatsoever to real property law. So leave your analogies about stolen cars, walking into my living room, and transferring money from my bank account to yours, because THEY ARE NOT THE SAME THING.

Re:So, basically

[jusdisgi]

Geez. I have to assume you have heard the FSF party line by now: "Without copyright the GPL would be unenforceable. It would also be unnecessary".

That's not the way I've ever heard or read it. I've always read it just like that, but without the last sentence. Because that doesn't make any damned sense; why would the absence of copyright law make the GPL unnecessary? I can see how it would make it unenforceable, but it seems to me that in a world without copyright law companies would easily be able to take free (GPL) software and distribute it binary-only without releasing their changes or the source. Which is to say, the GPL would still be necessary if you want to accomplish its goals......it's just that the necessity would be unfulfillable, and it would simply be impossible to do the things that the GPL does. Well, without hired goons.

Why? Because copyright is a good thing. It just needs to be used for the right purposes. Enforcing the GPL is one of them.

Re:So, basically

[corblix]

It is not hypocritical to be in favor of GPL but be against conventional copyright, since the root ideology is very different in the two cases.

That's a good point. One can support something, because one agrees with the underlying principles, and one can make use of something, simply because it is useful.

This idea works also in the opposite sense from the way you used it. Personally, I disagree with RMS on a number of points. However, I have released software under the GPL. Why would I use a license that is based on principles I disagree with? Because it is useful. The GPL nicely embodied the terms under which I wished to release this particular software package.

These notions of moral foundations vs. utility can form a pretty good framework for cooperation among people acting according to differing principles.

Re:So, basically

[alexo]

> How is this different from the RIAA going after its infringers?
> In both cases, they're intellectual property violations.

Not even close, although it will take a bit to explain.

First, "Intellectual Property" is an oxymoron, a term used by those that wish to to make copyright, patent and trademark laws even more restrictive, for the purpose of drawing analogues between ideas and physical property and advocate ownership of ideas that would somehow make thought and expression restrictions palatable.

However, there are fundamental differences between these concepts. I could repeat the common scarcity and exclusivity arguments but instead I'll remind you that when your ancestors sat in their caves around the fire, eating barely cooked wooly mammoth meat - stories, songs and ideas how to make better hunting or farming tools were shared freely but not necessarily the actual tools.

When copyright and patent protection were devised, the purpose was to benefit society, by granting limited monopolies to allow the creators to recoup their investment before releasing the works into the public domain.

Unfortunately, laws can be bought and original intent can be circumvented (does a protection term of >100 years benefit society? how?). Therefore, one should not confuse legality with morality (this is actually not a new concept; read Sophocles for an example).

So here's the beef:

**AA and their ilk purchased legislation that allows them to rob society of what should rightfully belong to the public. Their excercising their rights under that legislation is legal, but not necessarily moral.

The GPL, on the other hand, is an effort to use the only legal means available to keep free things free. The law is imperfect but no other alternative exists.

I'll try to give an example from the physical world but it may not be perfect since, as I said above, the dynamics are different.

Say I am an artist, I paint pretty decent art and I want as many people as possible to appreciate and enjoy it. So I take all my art, put it in the town square and invite people to freely take some. However, what would stop a person from grabbing all of it, locking it in his basement and charging people who want to view it?

Enter the GPL. It says in simple words that, under the present laws, you don't have any right to distribute the work. However, you can have this right, gratis, if you agree not to abuse it.

Re:So, basically

[Bradee-oh!]

There is a key difference - not between right and wrong, but between tactics.

The RIAA SHOULD stop copyright infringers just as FOSS groups SHOULD stop GPL violations.

But the RIAA collects coinicidental evidence for high volumes of people and, without nearly enough proof, accuses them all of breaking the law. Yes, alot of them are violators. But everytime you hear "RIAA sues another 200 people" in the headlines at least a handful of them are let off because the accusations were so outlandish compared to reality.

These GPL enforcements are neither broad nor hasteful. These people do their research. They take a suspected GPL violation. Research it until it is a LIKELY GPL violation. Research it until they have PROOF that it is a violation. They then contact the infringer and file for an injunction after fulfilling every RESPONSIBILITY that the ACCUSER should be required to fulfill.

Is copying and sharing music illegal? In most cases yes!
Should perpetrators be stopped? Yes!
Does the same apply to GPL violators? Yes!

It's not a question of legality or right vs. wrong. It's a question of ethics in the quest to stop the violations.

Maybe thats just my $.02, someone "correct" me if they have a different opinion.

Re:So, basically

[mopslik]

What the hell is wrong with you that you'd rather spend money paying lawyers to defend your belief that you can take GPL code and use it how you please, than not pay a lawyer, keep your money, and just comply.

Because some companies figure paying a lawyer $100K is worth it, when they can pull in $200K from their non-downloadable GPL-infringing product?

Just a guess, though.

Re:So, basically

[peg0cjs]

Actually, there is a difference in the interpretation of the meaning of "copyright" between GPL authors and RIAA. By definition, the term copyright means to provide the rights to copy a creative work.

The RIAA interprets this as they have exclusive ownership and said works and will restrict access to those works except to terms under which they are satisfied. The GPL authors interpret this to be the terms under which users may copy and distribute their work (as originally intended by the establishment of copyright). The biggest distinguishment is the resulting distribution of the work. GPL enforcement == larger dissemination of creative works, RIAA enforcement == more restricted dissemination.

The point of copyright is not to lock a work in a vault that everyone must pay to open. The point of copyright is to promote distribution of works in a way that is both fair to the author and to the general public. Ironically, the original application of copyright was to prevent corporate masters from abusing content producers by hording all the profits and unfairly restricting access to works. My, how far we've come in a few hundred years!

Re:So, basically

[CodeBuster]

There may indeed be some hypocrisy among Slashdot members with regard to the issue of copyright, intellectual property rights, and licensing. However, for my part, I am not against the RIAA or the MPAA licensing their copyrighted works in any manner that they wish as long as the terms of the agreements are consistent with the applicable laws. The grievances that I and many others have against organizations (MPAA, RIAA, et al) stem from several sources. First, these organizations are engaged in aggressive attempt to undermine the balance of copyright by rewriting the copyright laws in their favor. They forget that the purpose of copyright is, as determined by our founding fathers in Article I, Section 8, Clause 8 of the United States Constitution:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

It is not, as the RIAA and MPAA would have us believe, to protect artists against those who would steal the fruits of their labor. Copyright is a contract which defines a balance of power between creators and the public to promote the common good. It does not exist to protect profits and revenues that are derived form coincidental past inefficiencies in production and distribution which brings me to my second point. These organizations also seek legislative protection against new technologies which threaten their entrenched business models when it is clear that no compelling reason exists for the Congress to override the overwhelming public interest in the beneficial economic process of creative destruction to artificially shelter, through legislative Fiat, the existing firms from the discipline of the marketplace. I am not against copyright, nor am I anti-business, but I feel that organizations like the RIAA and MPAA are acting in bad faith to the detriment of us all when they seek to beat the marketplace into submission with the cudgel of draconian, un-American, and unconstitutional legislation.

Preliminary Injunctions are not enforcement

[Anonymous Coward]

Call us when a case goes to trial and the GPL is upheld.

GPL, what is there to test?

[Anonymous Coward]

If someone steals your GPL code, you sue them for *copyright infringement*. The only defense against that is if they can show they had a license to use your code. They are forced to show the GPL to save their ass, and then you nail them on the fact that they're not following the terms of the license they're pretending to use for their defense. What can go wrong?

Re:Good news, but we need some US court rulings 1s

[WillAffleckUW]

DrewTech developed some GPL code, and SAE said that they owned it and refused to release the source, and were charging money for it.

SAE gave up on their claims of ownership and released the source.

But did this involve an actual penalty or ruling from the court or was it settled ex parte (and thus not belonging to the body of US law)?

And also, was this a district court, state supreme court, federal court (e.g. 7th), or federal appeals court?

Re:This is How Open Source Damages Business

[Dareth]

Quoting the grandparent...

SCO is right. The GPL is FUNDAMENTALLY about attacking and destroying companies and their employees. Amazingly enough many people still fall for the GPL "freedom" lie.

GPL is a form of copyright, or rather a license to use some copyrighted code. If you do want to abide by the GPL you can write your own code, even if it does the exact same thing as code that is under the GPL license. Software patents on the other hand would prevent you from doing anything even remotely similar to the original code, if there even is code that implements the ideas of the patent!

Which one is more restricting?

Re:Work For Hire ?

[Anonymous Coward]

The situation is not that different than what would exist if developer B used work product from a prior employer in this new product.

Company A is pretty much screwed. It can open source it's product, it can keep it closed source but rewrite the gpl portions, and it can potentially sue the developer. But it can't be forced to open source it's code since it can withdraw it's product until it's gpl code free.

Cases like this occur with proprietary software and it's not unique to the gpl world.

Re:nice try

[Unit3]

haha I love how you classify a "real" court as being a "US one". I mean, never mind that the US legal system is the worldwide example of "what not to do", and has no bearing whatsoever on any country that is *not* the US (ie, the majority of the world population, and these days, the places where most of the OSS development is taking place).

Damn pro-business GPL haters

[hellfire]

I guess I've not been paying attention to all the posts in other threads that are so anti-GPL, but I had no idea there were so many asses out there who believe GPL is anti business.

Let me be clear... the GPL is anti-bad business. GPL is pro-good business and pro consumer. And remember businesses are consumers too, the bad businesses are primarily the huge bureaucratic companies which turn out buggy lame software that doesn't always do what you expect it to do.

Now let me define what is bad business. Bad business consists of companies who do their best to create software libraries and intellectual property manifests with the sole purpose of maybe, possibly, making money. That information is sealed and protected so that in order to get at it, you have to pay someone for it.

This is based on the idea that companies have make something tangible to make money. Proprietary software is tangible enough to make money from the masses because they often buy it as tangible.

Big businesses build up this repetoire of "intellectual property" and sit on it for years. It's okay to benefit from a good idea, but copywrite laws these days take it too far. Copywritable material now has an age of 90 years, it used to be 20! Current copywrite laws therefore allow companies like disney to sit on their repetoire and continue to make money off it and don't encourage them to make new material. These businesses are not sensitive to consumer wants and needs, and stifle competition because having huge amounts of Intellectual property that no one else can ever touch is an unfair competitive advantage.

Customers who use GPL are forced to be more creative, because everyone has access to the same software! Consumers win because companies have to be more competitive. Microsoft can sit on their ass right now and say "You want an office package? Great, here's our package for $600 a person. What, you don't want to pay that price? Lick my ass n00b, you can't do shit without my software, we 0wnz j00r ass!"

Here's another way to look at it. Before the internet, most networks were proprietary. Closed off and not communicating with each other. Companies had their own networks, colleges has theirs, and some of them even tried to create VANs (value added networks) to perform EDI (electronic data interchange). Most of those attempts were novel but they sucked. When the internet came out, everyone was suddenly connected. Now EDI is easy, because as long as your computer is on the internet, I can build something that communicates with you seamlessly.

I believe I once read in an article that innovation is increased when you unbundle functions of a system. For example, if IBM owned the internet, and you had to pay a fee to use it, this would stifle innovation because not everyone would be able to or want to pay the fee. Think about the internet vs phone networks. Phone networks have features like call waiting and call blocking and voice mail and caller ID. However, phone networks can only be used for phone calls (without DSL of course). The internet is simply build on a protocol of information transfer from point a to point b, but it has unlimited uses. You can take phone calls over the internet now, and not use the phone network at all. what's even greater is that if you have 5 ISPs to chose from, you can take your VoIP to any of those ISPs and use it seamlessly, because each ISP implements a standard internet connection. They compete on service!

I'm getting off topic but it all has to do with competition. Competition has been lacking in the last several decades, because people think it's okay for big companies to hold big power. The GPL is simply taking current overly controlling law and turning it against itself by guarenteeing that information released under it is free.

I disagree

[TFloore]

It is not hypocritical to be in favor of GPL but be against conventional copyright

Sure it is.

You either support a creator's right to control how his creation is distributed, or you don't.

If you don't support this right, then the RIAA is wrong, and so are the people that try to enforce the GPL.

If you do support this right, then the RIAA is right, and so are the GPL enforcers.

Oh, and if you think "information would be free" in your ideal world... then you *don't* support the right of the author/artist to control his creation. And therefore you lost any moral high ground.

I'm not arguing against the GPL. I support it. I am saying, you need to figure out your morals and ethics, and stop being contradictory. You either force people to your worldview, or you give them a choice.

And you seem to be arguing for force. That's a dangerous road.