GPL Successfully Defended in German Court

Philip Bailey writes "The GPL Violations Project, based in Germany, have won (subject to appeal) a court case against D-Link, who had allegedly distributed parts of the Linux kernel in a product in a way which contravened the GPL. D-Link had claimed that the GPL was not 'legally binding' but have now agreed to cease and desist, and refrain from distributing the infringing product, a network attached storage device. Expenses, including legal expenses, were received by the plaintiffs; they did not request any damages, consistent with their policy. They have previously won a number of out of court settlements against other companies. Slashdot has previously mentioned the GPL Violations Project."

Comments

Legally binding?

[Cheapy]

So is it now legally binding in Germany?

What does this say about propietry software's licenses?

Re:Legally binding?

[mindstrm]

The thing is, even if the GPL is not legally binding... what else gives D-Link the right to distributed copyrighted works of others? Answer: Nothing

Re:Legally binding?

[LehiNephi]

Yup, it looks like the GPL is now (officially) legally binding in Germany. This says nothing about the EULAs that come with proprietary software. Those are different licenses with different terms, and would have to be tested individually.

Re:Legally binding?

[Anonymous Coward]

The German legal system doesn't have binding decisions, i.e. a judge will - for any new case - look at the legal text and provided evidence and make a decision himself; but as there's nothing wrong with the GPL (and nothing else gives you a right to redistribute software) I'm pretty sure it will hold in the future as well.

This is basically just a relief for people who had doubts in the past.

Re:Legally binding?

[Anonymous Coward]

A license is a permission to break some law (James Bond: license to kill, GPL: license to violate copyright under certain conditions). EULAs don't fit the profile, they aren't licenses (unless you live in a country where installing a program from the retail CD to your harddrive is considered a copyright violation).

Re:Legally binding?

[arth1]

So is it now legally binding in Germany?

IANAGL, but as far as I know, the Ius Commune based legal system in Germany doesn't require a court decision setting precedence before a legal contract or new law is binding, nor does one court have to support earlier decisions by other courts.
All the precedent does is make it easier to fight similar cases, as one can draw on the experiences of the earlier case.

Re:Legally binding?

[KDR_11k]

The difference is that an EULA is a forced contract you have to sign after purchasing the product and before using it that restricts rights you usually have while the GPL is simply a written version of the terms the copyright holder has set for copying the software. The GPL is the condition under which the copyright holder is willing to make concessions to you while an EULA is an attempt to extend the powers of the copyright holder beyond those granted by law.

And AFAIK EULAs aren't considered valid under German law.

Re:Legally binding?

[Anonymous Coward]

So is it now legally binding in Germany?

Bloede Frage. Next...

Re:Legally binding?

[iminplaya]

James Bond: license to kill, GPL: license to violate copyright under certain conditions

And in both cases quite fictional. GPL does not violate any copyright law. It is simply another rule of distribution.

Re:Legally binding?

[caseih]

Right. This is about software distribution, not software use by an end-user. The GPL is *not* an EULA; it's a license to distribute the program. The GPL explicitly states that you do not have to agree to the terms of the GPL in order to use the program.

I suppose that by these same arguments you could argue that EULA's must be valid because nothing else grants you the right to use copyrighted materials when you buy a program from a closed-source vendor. But EULAs go beyond copyrights into contract law, I believe they are a different beast than source code licensing.

Re:Legally binding?

[frost22]

hmmm... IANAL

but as long as they confirm to the $$305 ff BGB (the successor clauses of the formel AGB-Gesetz (law to regulate fine print in contracts)) they can - AFAIK - be perfectly valid.

On the other hand, the majority of EULAs is so outrageous they would not pass muster in most iurisdictions, including Germany and the EU.

Re:Legally binding?

[Anonymous Coward]

Buying a copyright program doesn't give you the right to use it? What a waste of money.

Re:Legally binding?

[Anonymous Coward]

It doesn't fall under 305ff. because it wasn't available at the time of the conclusion of contract. Submitting terms after contractual agreement doesn't make them included.

Re:Legally binding?

[Anonymous Coward]

IAAGL and you, sir, are correct.

Re:Legally binding?

[Mr. Underbridge]

Not necessarily. Particularly unlimited use. Hence EULAs.

Re:Legally binding?

[noidentity]

The GPL license primarily governs what can be done with the source code, not the program itself. This hardly compares to restrictions on most proprietary software, which list all sorts of behavior that the user is not allowed to do.

Re:Legally binding?

[mrchaotica]

What does this say about propietry software's licenses?

It should say absolutely nothing, because the GPL only covers distribution (which you don't automatically have a right to do) while most proprietary software licenses try to cover mere use (which you do automatically have a right to do, under the Doctrine of First Sale). Unlike the GPL, EULAs have no real meaning.

Of course, I'm not German so I have no idea if they do things differently than we do in the US.

Re:Legally binding?

[angel'o'sphere]

Hm,

Yup, it looks like the GPL is now (officially) legally binding in Germany.
No, the GPL is not legal binding in germany. In germany only 2 things are legal binding: laws, and contracts. And this is more or less true also for the rest of the world, except that in some countries court rules "become law" or are similar to law unless in later times other courts do no longer agree in certain situations.

What after all does legal binding in your eyes mean anyway?

This says nothing about the EULAs that come with proprietary software. Those are different licenses with different terms, and would have to be tested individually.

What is an EULA? Something you agree on before you buy a product, that is before you aquire ownership? If so the EULA is completely valid as long as it does not contradict any law.

If you have aquired ownership of the product before the EULA is presented to you, e.g. there is a EULA on a sheet of paper inside of the box, or after opening the box and using the software a EULA dialog pops up, the EULA is completly irrelevant and void.

Back to the topic: as far as I understand the ompany D-Link claimed they simply used the GPLed software and had no contract with the author so the "GPL note" on the software would be not legal binding. Thats of course a bullshit idea of D-Link, especially as this is not the first GPL law suit in germany and in all cases the copyright owners won ...

angel'o'sphere

Re:Legally binding?

[dangitman]

Please keep your dirty fetishes to yourself. I don't care if you AAGL in the privacy of your own home, but don't do it on slashdot.

Re:Legally binding?

[abertoll]

I'd have to agree. The last letter in EULA is "Agreement" making "License" an unusual adjective.

Re:Legally binding?

[Tim C]

The argument (as I understand it) is that in order to install the software to a hard drive, you must make a copy of it, and in order to run it, you must make a copy of it (into RAM). Copyright law forbids you from making these copies without the express permission of the copyright holder, hence an EULA is required to grant that permission.

Of course, copyright law doesn't require all the extra crap that is often thrown into an EULA as well (eg no publishing benchmarks)...

Re:Legally binding?

[fatphil]

My understanding was that ephemeral copies, such as the loading into RAM, are explicitly excluded - they themselves do not cause you to break copyright. If, however, the copy on your HD is in violation, then you're in vailation whether you copy it to RAM or not, so ephemeral copies aren't relevant from that perspective either.

FatPhil

Re:Legally binding?

[rmccann]

The GPL is not a licence to violate copyright. Copyright law says that only certain people have power to control the distribution of a certain work. The GPL says "You can distribute this under condition X, Y, Z". The GPL doesn't violate copyright law, it uses the power of copyright law.

Re:Legally binding?

[Anonymous Coward]

IANAL, and I'm from Europe, so this may be different in the US.
Over here, though, an EULA cannot be enforced unless you buy the software directly from the company that wrote it. The reason for this is that buying an off-the-shelf copy of, say, Windows XP from your local computer store is a deal between two parties - you and the store owner. Therefore, Microsoft is not an involved party in this deal, and thus cannot dictate what you may or may not do with the software.
Of course, if you buy directly from Microsoft, as most companies with volume licensing, software assurance, and similar license agreements do, then the EULA becomes part of your contract and you have to obey it or face the consequences.

Re:Legally binding?

[zcat_NZ]

The GPL is NOT legally binding. It never has been, and it never claimed to be.

Copyright law is legally binding. If you want to distribute copies of software (Be it Microsoft's or Richard's or Linus's) you need permission from the copyright holder. You're quite welcome to completely ignore the GPL, but in that case you have no permission to distribute copies of the software and doing so becomes copyright violation.

It's really simple.

Re:Legally binding?

[Anonymous Coward]

IANAL, but IMHO an EULA is an 'agreement' that you, the 'end user' will use the 'license' only under certain conditions as agreed by accepting in the End User License Agreement.

Ergo, the EULA is used to limit the license, for without the EULA, your 'end user' act of purchasing the software would give you a broader 'license' to do what you want with the software.

Re:Legally binding?

[Anonymous Coward]

Get your "Object Verb Subject" straight if you want to discuss this.

"GPL" "is" "license"
"people" "violate" "copyright"
"people" "use" "license"

no such thing as

"GPL" "violates" "copyright"

Re:Legally binding?

[Anonymous Coward]

It's not even remotely the same argument. Copying and distribution is explicitly covered under copyright. But there's nothing in the law that says you need permission from the author to use a copyrighted work. Only to make copies of it. There are two legal legs upon which EULAs can stand, and neither one is that.

One leg is that the EULA is presented as a contract as you install the software; by clicking I Agree, you have accepted the contract and you are now bound by it. This would obviously not cover shrinkwrap licenses and such, and if you could figure out a way to install the software without agreeing to the EULA then you may have legally avoided it.

The other leg is that you have to copy software in order to use it, even if it's just into your computer's memory. While it's ridiculous to think that this copying would not be covered under Fair Use in the US, you can still try to make the argument, and other countries don't have such generous Fair Use provisions.

In conclusion, the GPL is not a EULA and this case should have no bearing on whether EULAs are legally binding.

Re:Legally binding?

[schon]

in order to run it, you must make a copy of it (into RAM). Copyright law forbids you from making these copies

Completely false.

Copyright law (in the US) explicitly allows these copies.

You do not need to agree to an EULA in order to run a piece of software.

Re:Legally binding?

[ajs318]

There is a marked difference between GPL and proprietary licences. Nothing in the GPL presumes to interfere with your statutory rights. Many proprietary licences contain clauses which appear to diminish a person's rights under the Law of the Land. In most jurisdictions, that sort of thing is not allowed.

What D-Link were doing was not covered by Fair Dealing Exemption (a right given under the Law of the Land) and so would ordinarily have been considered a violation of copyright law. The German courts have merely ruled that the conditions attached to the permissions afforded by the GPL are conscionable.

In the case of something like the old FrontPage Express licence (with its clause forbidding its use to cast Microsoft in a bad light) or the old Borland compiler licences (with clauses forbidding their use in the development of any product which competed directly with a Borland product) it might be different. Likewise, the restriction on reverse-engineering which appears in many EULAs despite the existence of a statutory right to perform such work in limited circumstances. Such conditions may be ruled unconscionable, if tested in court. So far, they have not been. That in itself is telling.

Re:Legally binding?

[ArieKremen]

German law is different from the Anglo-Saxon Case Law. For a decision to become legally binding it must be passed as a law, not decided by a court (except for the Highest Courts, which may overturn laws based on constitutional issues). While it may set a precedence for other, future litigation, it is in no way binding.

Re:Legally binding?

[ista]

This single court decision is binding (when not calling for appeal) and D-Link in between acknowledged that they won't challenge the decision.

It's important to note that you can't quote a precedent in Germany, as the german law doesn't take care of previous cases.
E.g. a court in munich decided back in 2004, that the GPL does apply (back then: for netfilter/iptables) and can be enforced (in that case, against Sitecom, another router vendor).

You can present that there have been a dozen decisions in one direction, but usually that doesn't have any impact on the court's decision. So this single court decision can't be regarded as a test case, but it still improves the situation for defending the GPL a little bit - as a reference, but not as a precedent. In fact, there are quite often cases where different highest regional courts do state completely opposite decisions for very much comparable, but arguable cases.
For example, german websites have to show an imprint, stating a few legal things along with contact information (full name, postal address, usually phone number and email address). OLG Hamm decided that you don't have to state your phone number, an email adress with an often checked account ist satisfying, while OLG Cologne previously stated a very different view in a much noted court decision.

This recent D-Link case is still somehow cumbersome:

D-Link tried to rely on section 2 of the GPL, which might be unenforcable under german law or in some interpretation violate german or even european law. As the GPL doesn't contain a severability clause (it doesn't render a whole document invalid just because a part of it is regarded as invalid), this might've taken down the whole GPL (this needs to be considered for new versions of the GPL!). D-Link argued that without a valid license, this open source software would've been completely free from any rights or licenses.

The court revoked that idea, because setting some code under GPL still doesn't remove your copyright on that code; so D-Link could've been challenged for copyright infringement and all parties settled for section 4 of the GPL, completely ignoring anything out of that scope.

The court's decision (of course in german) can be found at http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf (scanned fax pages).
The name "D-Link" has been striked out, due to some other law thingie (jbb.de are the lawyers for gpl-violations.org any may not offend privacy rights of the other party), but the rest is still complete.

Re:Legally binding?

[squiggleslash]

I'm only responding to this somewhat rude and false comment because it's been modded up.

The GP, while being pedantic, is correct. The GPL does not allow you to "violate copyright" any more than a shop allows you to "steal products" in exchange for money.

Essentially, if you're copying something according to the conditions of a valid license granted to you by the copyright holder, then you're not violating copyright, by definition. Therefore a license doesn't allow you to "violate copyright", because once it allows you to do something, it isn't violating copyright any more!

(Likewise, to use the shop analogy, if you pay for something and walk out of the shop, you're not being "allowed to steal" the item in question, because it's no longer stealing, by definition.)

That was the GP's point.

That said, the GP is being overly pedantic, it was fairly obvious what the GGP meant, however badly worded it was.

Re:Legally binding?

[Jesus_666]

I am German and AFAIK over here EULAs are automatically void if they aren't presented to you prior to buying the product. Since this applies to virtually all EULAs they are pretty much worthless.

Re:Legally binding?

[Pofy]

>>Buying a copyright program doesn't give you the right
>>to use it? What a waste of money.
>
>Not necessarily. Particularly unlimited use. Hence EULAs.

Ehh, you can use it in basically ANY way you want except a few specific ways mentioned in copyright law. That is basically various forms of public performances and making it available to the public and to make copies. Copying still allowed without any special permision or contract includes in most countries of the world the copies needed to actually use the software to start with (as an end user) in case such use requires certain copying (for example to install it on the computer and thus copy it to the hard disc). For almost every user one can say that buying the software indeed give "unlimited use".

Re:Legally binding?

[mrchaotica]

Good to know; thanks!

Re:Legally binding?

[Mr. Underbridge]

Really, use of any work that is licensed to one party to another is subject to copyright law as well as any contract that exists between the two parties. Copyright covers default rights and restrictions; others may be placed into effect by the parties to a contract.

Re:Legally binding?

[Pofy]

>Really, use of any work that is licensed to one party to
>another is subject to copyright law...

Copyright law only regulate and cover a few specific "rights" or actions you do. Licenses of interest are for those rights only. Nothing else needs a license. Specifically "license for use" is a non issue as far as copyright goes.

>... as well as any contract that exists between the two parties.

Contracts is of importance to the ones entering it only, no one else. Further if you don't agree to anything, it doesn't apply either. Since normal use doesn't require any license, you don't have to agree to one to use it and can thus ignore it.

>Copyright covers default rights and restrictions;
>others may be placed into effect by the parties to a contract.

That has, however, NOTHING to do with copyright, you can apply and say the same thing about any goods that doesn't have anything to do with copyright. You can for example apply the same to a watch for example and argue that by contract you can limit the use of a watch someone bought.

If you want to go further onto consumer cases, there is a whole bunch of laws (varies a lot by country though) that limits what you can and can not contract about.

Strange....

[mark-t]

I don't get it..

Why were they barred from distributing the product?

Or was there some reason that they could not also just distribute the source, which would have also made them compliant with the GPL?

Re:Strange....

[kfg]

. . .was there some reason that they could not also just distribute the source, which would have also made them compliant with the GPL?

The empirical evidence would suggest that they don't want to.

KFG

Re:Strange....

[AuMatar]

They didn't want to. Yes, distributing source would make them GPL compliant. They refused to, so they were forced to stop distributing the product.

Re:Strange....

[Pausanias]

Imagine this. A clueless properietary software company builds some software based on all the best libraries it can find. It takes some GPLed libraries, licenses some closed source libraries, and links it all together into one closed source executable. Normally, it has to sign non-discolsure agreements as parts of the deal to license the closed source libraries.

In this situation, there is absolutely no way for the clueless company to legally sell the executable. Under the GPL, it must supply the source code for everything needed to build the executable. The only options are: 1) violate the GPL and try to get away with it; 2) release the complete source and get sued by the other closed source licensors for violation of the NDA; 3) no longer sell the executable. I wonder which options most companies would go for?

I bet you this happens all the time. Perhaps even in some of our favorite closed source Linux kernel modules. NDAs are the primary reason given by NVidia and ATI for not open sourcing their graphics card drivers. Perhaps there are even several layers of this happening, with companies trying to sell licenses to closed-source modules that include GPLed software.

Re:Strange....

[JesseL]

Under the GPL, it must supply the source code for everything needed to build the executable.

I don't know were you got this idea but it is wrong.
http://www.gnu.org/licenses/gpl-faq.html#FSWithNFL ibs

Re:Strange....

[chgros]

I don't know were you got this idea but it is wrong.
He got it from here:
http://www.gnu.org/licenses/gpl-faq.html#GPLIncomp atibleLibs

Re:Strange....

[quiberon2]

They could separate the parts; supply the GPL'd part (with source) in the left hand; supply the '3rd-party obligation' part in the left hand; and supply a means whereby their customer can glue them back together themselves.

I don't think the GPL stops them doing what they want to do, which is presumably 'provide the contracted service to their client'. It just means they have to be careful how they go about it.

Re:Strange....

[angel'o'sphere]

Hi,

Why were they barred from distributing the product?

Because the product (lets give it the version number 1.1) does not honour the GPL, so it's banished from distribution, ofc.

Or was there some reason that they could not also just distribute the source, which would have also made them compliant with the GPL?
Of course they can do that, but then they have a new product with the version number 1.2 (source included). That one then would be distributeable again ... until some copyright owner complains because of something else ;D

According to german copyright laws the copyright holder has certain rights: the simplest one is to stop the distributor from distributing. Unfortunately there is no paragraph in our law which says: on demand of the judge the copright viaolator has to do what the copyright holder wants. (such a paragraph obvisouly s nonsense .... and in our understanding of law the judge has not to define what is right and how to do right, he only has to figure what is wrong and stop the wrong doing)

angel'o'sphere

Re:Strange....

[DamnStupidElf]

If a library is released under the GPL (not the LGPL), does that mean that any program which uses it has to be under the GPL?

That pretty much sums it up. The way companies like nvidia get away with shipping binary drivers is to not actually link their binary with any GPL code and let the user do that part. Since the FSF and the GPL both recognize the fair use right for people to do whatever they want with GPL software for their own use (without redistributing it), it's legal.

Re:Strange....

[zcat_NZ]

From a legal perspective, that might be right (although I strongly doubt it!)

From the GPL perspective it's completely wrong. If DLink has agreed to distribute source, that would have immediately been the end of the matter and no further action would have been taken.

What's more likely is that DLink made changes to the free code, using libraries or specifications that they were not allowed to distribute. Example; the specifications of many wireless chipsets are available under an NDA which only allows you to write binary drivers. You're not allowed to pass this information on to anyone else, either as documentation or in the form of source code.

Assuming DLink had used such a chipset (which is entirely likely) they would be in a bind. The GPL requires them to distribute source with the binaries, the NDA prohibits it. The only legal option is to do neither and kill the product.

Re:Strange....

[angel'o'sphere]

From a legal perspective, that might be right (although I strongly doubt it!)

Oh, well ....


From the GPL perspective it's completely wrong. If DLink has agreed to distribute source, that would have immediately been the end of the matter and no further action would have been taken.


So, what would be cour case? Simplified: hello judge, I want them to include source, because this is the license: ... holding up a piece of paper with the GPL written on.

So, what should the judge then do? Say: "uh, oh, cool. Yes, according to the license they need to include source. With herein I sentence you to incldue source from now on!

Sorry, there is no law on which such a sentenence is founded. There is no law even, that says you may sue for adhering to a license. The law is: if you find a copyright violator, you can force him to stop the distribution, you can sue him for redemtion etc. But there is no law, simply spooken that says: show me your license and give me the copyright violator and I enforce it for you, your Judge.

angel'o'sphere

Re:Strange....

[zcat_NZ]

Consider the typical Microsoft/BSA lawsuit where a company is found to be noncompliant. The company always has the option of buying the appropriate number of Windows licences and are allowed to continue operating with the exact same software that is already installed. The last thing Microsoft want is forcing someone to switch to Linux!!

How is this any different?

"Your honor, D-Link have agreed to comply and distribute under licence from now on. We're happy to overlook previous violations, and if we could be awarded our legal costs so far the remainder of this case can be dismissed."

Judges (afaik) usually prefer that the parties sort out their differences and come to an agreement themselves, without having to impose fines or injunctions.

Re:Strange....

[spitzak]

You missed these:

4) Replace the GPL portions with code you wrote or bought

5) Replace the NDA ones with code you wrote or bought

Re:Strange....

[Anonymous Coward]

But why the hell not distribute the source? They are selling the fucking hardware, so making it hackable is an additional attraction (look at linksys' consumer routers: only reason they sell so well is because we can put linux on them!)

They are shooting themselves in the foot, really, and I am so fucking sick of this secrecy for secrecy's sake

Re:Strange....

[Bloater]

There is no precedent for that, AFAIK. So you would have to convince the judge that bundling a GPL implementation of a well-defined API (and since you have source for at least one implementation, it is *very* well defined) is more than mere amalgamation with the library to get an injunction.

For example, if I have a painting and a license to copy and distribute the copies as close to verbatim as technologically possible, I am permitted to put them in a frame before distribution. That does not form a derivative work. It's function is enhanced, but the two works are clearly delineated and merely amalgamated, IMHO.

If the program that uses the library was compiled with the GPL implementation's headers and those headers included macros or inline functions, it *might* be a derivative work. But putting code in knowing that the compiler will automatically copy parts of it into your licensee's program without it being requested by the licensee may count as permission to include those parts depending on the court's mood.

As always, consult a lawyer on his/her ability to defend you/prosecute in case of somebody disagreeing on the lawfulness of your planned actions.

Re:Strange....

[Anonymous Coward]

I wonder which options most companies would go for?

If the companies I've worked for and with are any indication, they'd go for 4) look for a BSD-licensed version of each; if no such beast exists, get some guys from elsewhere in the company to write a clean-room reimplementation.

NIH is a bedrock principle of many software companies, after all.

Re:Strange....

[angel'o'sphere]

Consider the typical Microsoft/BSA lawsuit where a company is found to be noncompliant. The company always has the option of buying the appropriate number of Windows licences and are allowed to continue operating with the exact same software that is already installed. The last thing Microsoft want is forcing someone to switch to Linux!!

How is this any different?


The difference is exactly as you describe below! The two parties have to agree in front of the judge (in thes case the accused party would have to give in) that from now on the source is included. But they did not do that but waited for the court descission. In fact D-Link refused to give in.

angel'o'sphere

Re:Strange....

[Mr0bvious]

How does the effect a company who develops a product for another company? Does this constitute distribution? Suppose company X wins a contract to develop product P for company Z, if P is developed using and uses GPL software (possibly even modified version of GPL software) perhaps linked together etc. When company X delivers the final product (which will be used only internally by company Z), does this constitute distribution? Is the only criteria here, that company Z must also gets the source code? Is it only that every entity that can get a copy of the binary must also be able to get a copy of the source?

Re:Strange....

[Anonymous Coward]

6) contact the authors of the GPL libraries and negotiate a different license. This involves paying money for the distribution rights, just like they pay money to the authors of the proprietary libraries.

Re:Strange....

[hey!]

This doesn't fully explain why they would not want to redistribute source. The GPL allows you to charge a reasonable reproduction fee after all, altough most people finding it easier just to post the source or throw it on a CD.

My guess is that they've done a bit of a rush job in gettting Linux running on the box, and as a result they've modified kernel source in a way that causes it to contain information they consider proprietary. That's the only reasonable explanation.

An alternative explanation, which seems less likely, is that they just want to discourage people from hacking with Linux on their boxes and possibly creating support issues for them later. However, that seems far fetched. Very few people are likely to ever even flash their boxes, much less flash them with custom images then turn to the vendor for support.

Re:Strange....

[spitzak]

Only company Z has to get the source code. However they have to get it with the GPL license, which means they can give it to anybody else they want to.

One way around this is to sell customized services that are not much use except for company Z. I would think you can get company Z to sign a contract saying they won't enter into your customized-services business so the code is useless to them except for maintinence. Or the customized parts consist of trade secrets of company Z, and thus they won't want to re-release the code.

For commercial software the only solution is to bundle other things of value. Embedding a lot of trademarked images which have to be stripped, or including software that does not have a redistribution license, works quite well (this is how the commercial Linux distributions work).

Re:Strange....

[turbidostato]

"How does the effect a company who develops a product for another company? Does this constitute distribution?"

Definetly yes.

"Suppose company X wins a contract to develop product P for company Z, if P is developed using and uses GPL software (possibly even modified version of GPL software) perhaps linked together etc. When company X delivers the final product (which will be used only internally by company Z), does this constitute distribution?"

Of course yes.

"Is the only criteria here, that company Z must also gets the source code?"

Yes (well, not exactly. The criteria is that P must be delivered to Z under GPL terms, that mainly means that Z gets the source code and the ability to further redistribute it, again, under GPL terms).

"Is it only that every entity that can get a copy of the binary must also be able to get a copy of the source?"

Is it not the same? I distribute just to Z and Z is the only one that gets the code.

So let's see this case:

Z (the client) will get P under the GPL so they are free to redistribute (under the GPL terms) since point 6 of the GPL states that the distributor "may not impose any further restrictions on the recipients' exercise of the rights granted herein."

On the other hand, X (the developer) can be bound by a contract held between X and Z ie. not to further distribute P to any other client, since the GPL doesn't say anything about that, and that's clearly within common practices.

Note that this approach will only be valid between *companies*. If you (X) are a consultant or an employee of Z, then that wouldn't be consider distribution but internal development, and you would have no rights (except maybe, that of claimed authorship, in the case you are an external consultant, not an employee) over the developed code thus, the GPL wouldn't be "triggered" at all (since it only deals with code distribution).

GPL vs EULA

[delirium of disorder]

Since the GPL is based on well established copyright and contract law, in most nations it shouldn't really need to be "tested" in court. IANAL, but I would think that it would have a far stronger legal standing than EULAs which often make the people who agree to them take all sorts of measures that have nothing to do with traditional copyright protection.

Re:GPL vs EULA

[kfg]

I would think that it would have a far stronger legal standing than EULAs which often make the people who agree to them take all sorts of measures that have nothing to do with traditional copyright protection.

They do not make people do anything. They make people think they make people do things. Provisions within a EULA that are not legally binding are not . . .legally binding.

Beyond simply being deceptive, most click through EULAs are boilerplate. They include every possible provision which might be legally binding across all jurisdictions in which the software might be sold. That is the genesis of the clause you will find stating that any individual provision which is found to not be legally binding does not legally invalidate the entire license. They know there are questionable/nonbinding terms in the license "agreement" and are protecting those provisions which bind.

KFG

Re:GPL vs EULA

[Wdi]

The GPL is *not* based on international copyright and contract law, but is rather parochially (and dangerously so) modeled on US/British legal views. One key point is the missing distinction between copyright (which cannot be transfered in German law but remains always with the author) and commercial exploitation rights (which can be assigned/sold etc.). The question whether the exact wording of the GPL implies an impossible transfer of copyright which would it make unenforcible in German law, or not is far from obvious, and it may require more court reviews until this is really settled in German law (the legal system does not require other courts to always follow precedence from isolated cases without established legal theory behind it).

Re:GPL vs EULA

[kswtch]

any EULA violates German (and most other EU contries) law. therefore it is nothing more than an unnecessary step during installation of proprietary software.

Re:GPL vs EULA

[cfulmer]

That's a bit simplistic. Contracts are tested in court all the time and some of them are found to be unenforceable, often on the basis of "well established . . . contract law."

Here are a few examples:

(1) Who gets to enforce the GPL? I don't know much about the GPL-Violations group, but if they didn't write any of the code then (at least in the US), they wouldn't have standing to enforce the GPL.

(2) While we're at it, what is the ownership status of a work with one original author that has been modified by a half dozen more? What happens when you're only copying the work added and not the original work?

(3) What methods can you use to fence off GPL'd code from your own code? Is it sufficient to make it into a daemon with a socket interface? Are there other methods that also work?

Re:GPL vs EULA

[dangitman]

It's hard to believe that a EULA actually violates the law. If it did, why haven't we seen all the big software companies sued into oblivion yet? It seems more likely that the provisions outlined in the EULA would not be legally enforceable - not that it is unlawful to actually put a EULA on a product.

But if it is illegal, then shouldn't somebody be bringing those lawsuits?

Re:GPL vs EULA

[Digicrat]

Those are some good questions.

Would a third party be legally authorized to sue for enforcement of a license agreement when they are not a party of that agreement themselves without first getting consent from a license holder?

I may be wrong, but my understanding is that as long as you link to the GPL'd code as an external library you are legally safe (providing that you include the source of that library). If you need to modify the API/functions of that library though, you must distribute the full source code of it, the original and modifications, of the entire linked library. As long as the library is externally linked (ie: a dll or equivalent) and not compiled into your application, the GPL doesn't extend to the rest of your application.

Re:GPL vs EULA

[gnasher719]

'' The GPL is *not* based on international copyright and contract law, but is rather parochially (and dangerously so) modeled on US/British legal views. One key point is the missing distinction between copyright (which cannot be transfered in German law but remains always with the author) and commercial exploitation rights (which can be assigned/sold etc.). The question whether the exact wording of the GPL implies an impossible transfer of copyright which would it make unenforcible in German law, or not is far from obvious, and it may require more court reviews until this is really settled in German law (the legal system does not require other courts to always follow precedence from isolated cases without established legal theory behind it). ''

The untransferable right of the author in German law is called "Urheberrecht", roughly translated as "creator's right". If I write software, then I am the creator, and according to German law nobody else is allowed to claim to be the creator. I cannot even sell you the right to call yourself the creator. That is the right protected by Urheberrecht: The right to claim that I am the author. There seems to be no such right explicitely mentioned in US law; on the other hand, if US citizen A writes some software, and US citizen B claims he wrote it, then B is a liar.

However, the US copyright _is_ the right to commercial exploitation. So your mapping US copyright = German Urheberrecht, ??? = german right to commercial exploitation is wrong. The correct mapping is German Urheberrecht = nothing corresponding in US law, German right to commercial exploitation = US copyright law.

Re:GPL vs EULA

[ClamIAm]

I don't know much about the GPL-Violations group, but if they didn't write any of the code then (at least in the US), they wouldn't have standing to enforce the GPL.

Hey, I have an idea. Instead of posting something that draws on no actual facts, you could take two minutes and read their homepage:

The founder, Harald Welte ... [discovered] companies violating the GPL in software he wrote for the netfilter/iptables project.

...

Over time, some other Linux kernel developers have transferred their rights in a fiduciary license agreement to enable [enforcement of] the GPL in cases where [no code was written by Welte].

Re:GPL vs EULA

[ClamIAm]

The GPL is *not* based on international copyright and contract law, but is rather parochially (and dangerously so) modeled on US/British legal views.

um...

Re:GPL vs EULA

[kswtch]

ok, maybe i should explain that a bit more. "against the law" may not be right. It's more that an EULA is not valid in most EU countries (at least in germany) because you make the deal and accept the rights given you by law when you purchase the product. At this time you don't have access to the EULA. If the EULA says "you may not give it to your best friend as a present" you still can give it away, because you gained this right during the purchase of the product.

I hope it's a bit clearer now.

Re:GPL vs EULA

[init100]

I may be wrong, but my understanding is that as long as you link to the GPL'd code as an external library you are legally safe (providing that you include the source of that library). If you need to modify the API/functions of that library though, you must distribute the full source code of it, the original and modifications, of the entire linked library. As long as the library is externally linked (ie: a dll or equivalent) and not compiled into your application, the GPL doesn't extend to the rest of your application.

I think you are wrong. Why? Because this is a good explanation of the LGPL, not the GPL. Linking with a GPL:ed library does extend the GPL to the entire program, while (dynamically) linking with an LGPL:ed library does not (static linking does extend the LGPL to the partent program too).

Re:GPL vs EULA

[dangitman]

Most EULAs explicitly state that provisions that are not prohibited by local law are not valid. Now, can they enforce EULAs on those provisions that aren't covered by local consumer laws? I don't know, but I would say that in most places, the courts would probably say "yes they can" as long as they are within the law, and not anti-competitive, etc.

Re:GPL vs EULA

[B2382F29]

Now, can they enforce EULAs on those provisions that aren't covered by local consumer laws?

No, they can't. The only exception is if you buy directly from Microsoft AND you were handed the EULA BEFORE buying the product. Everything else is not legally binding. (You CAN unbundle Windows in Europe/Germany, because when you bought the PC, Microsoft didn't make a contract with you, thus you have all the normal rights including the unbundling of your software. Unfortunately Microsoft is making it extremely difficult to unbundle by technical means)

Re:GPL vs EULA

[Celandine]

It sounds as though you are talking about what are called in English the moral rights of the creator, which do have some limited equivalent in US law, though not as much as they do in EU countries.

Re:GPL vs EULA

[dangitman]

No, they can't. The only exception is if you buy directly from Microsoft AND you were handed the EULA BEFORE buying the product.

Do you have any links to the laws or rulings that state this?

Re:GPL vs EULA

[TheRaven64]

static linking does extend the LGPL to the partent program too

Not quite. The LGPL states that if you statically link to an LGPL'd library then you are required to provide the object files to recipients of the final work, allowing them to link a different version of the library. If you modify the library itself, then your changes are subject to more-or-less the same restrictions as the GPL (providing that you distribute them).

Re:GPL vs EULA

[Schraegstrichpunkt]

Try any case of contract law.

No distribution of the source?

[timmyf2371]

I read the news article linked and didn't see any reference to D-Link releasing the source, nor any request by the GPL Violations group for them to do so.

"It was very sad to see D-Link starting to argue that the GPL would not apply. Given D-Link's repeated license violations, it can be thankful that we've never asked for any kind of damages, but merely to cease and desist from further infringements, plus our expenses. I start to wonder whether they actually deserve such a mild strategy."

The group even mentions themselves that they were only looking to cease and desist from the practise.

While this does seem to be the right step, I'd have at least expected a requirement to release the source in question - if the GPL is valid and a company has released a product contaminated with GPL code, shouldn't they have to release the source rather than simply refraining from the practise?

Re:No distribution of the source?

[Sique]

They preferred not to but rather to cease and desist. It's their decicion, not yours.
Who knows what other corpses they had in the cellar (to use a german proverb)?

Re:No distribution of the source?

[Not The Real Me]

"if the GPL is valid and a company has released a product contaminated with GPL code, shouldn't they have to release the source rather than simply refraining from the practise?"

This is the viral nature of GPL. I suspect from now on, D-Link will move over to one of the BSD's, probably FreeBSD. The viral aspect of GPL is what I suspect keeps many companies from going full Linux. At least when you make a deal with the Devil, i.e. Microsoft, and MS allows you to modify one of their Windoze kernels for a hardware device, you have the comfort of knowing that your competitors will not use the GPL to try and get their grubby little fingers on the code that you paid huge sums of money to your developers for free.

Re:No distribution of the source?

[Sique]

Copyright by itself is viral. If you modify someone elses Work of Art (i.e. creating your own work based on the original), you need her permission. To distribute it you need her permission again. And to distribute it for modification, you have to ask for permission again and again. Same is valid for the modificaton of the modification. This is viral by nature. The GPL just gives you all three permissions at once, but it doesn't change the virality.

In fact the same is valid for the BSD licence. The original copyright holder has to be mentioned in all derived works, and also in the derivations of the derivations. In this case the virality is attached to another aspect, but it is still viral.

Re:No distribution of the source?

[Paradise Pete]

I suspect from now on, D-Link will move over to one of the BSD's, probably FreeBSD.

It's not like it was something they wrote. They were using someone else's work, so they can't just "move." They have to either write their own or find some other work they can use.

Re:No distribution of the source?

[Greg Lindahl]

I read the news article linked and didn't see any reference to D-Link releasing the source, nor any request by the GPL Violations group for them to do so.

That's more likely a defect in the article than proof that the GPL Violations Group did not explain this to D-Link. After all, the best possible solution is for the product to still exist and the GPL to be followed, by releasing the source.

But, if you really want to know, why don't you ask the GPL Violations Group instead of speculating on Slashdot?

Re:No distribution of the source?

[Anonymous Coward]

I was under the impression that by violating the GPL you lose your license, and so releasing the code after litigation is moot. It would be like returning a stolen item after you've been caught--too little, too late.

Re:No distribution of the source?

[KillerBob]

You're incredibly naive if you think an unmodified Linux kernel is capable of running an embedded device like that....

In other words, it *is* like it's something they wrote. They stood on the shoulders of others, but they still had to do their own work to get it to work with their hardware and do what they want it to do. Seeing as they use off the shelf wireless chipsets, ethernet controllers, and such, there's absolutely nothing to stop a competitor from using the source code they would have to release under the GPL to manufacture a cheaper alternative that is functionally identical. It makes much better fiscal sense for them to switch to a different kernel and modify their own source to suit it.

Re:No distribution of the source?

[mrchaotica]

Seeing as they use off the shelf wireless chipsets, ethernet controllers, and such, there's absolutely nothing to stop a competitor from using the source code they would have to release under the GPL to manufacture a cheaper alternative that is functionally identical.

Conversely, there was nothing stopping them from just grabbing Linksys' WRT source code, or OpenWRT, or any of the other Free Software firmwares and running it on their router. Then they'd become that "cheaper alternative!"

Besides, that's exactly how the GPL is supposed to work, and DLink knew the rules of the game before they started playing.

Re:No distribution of the source?

[mike2R]

I really don't understand the viral analogy. Code doesn't "catch" the GPL, only code that was placed under it, or derivitive works of that code, is covered by it. It's not like you have to be careful keeping your propriatry code on the same hard drive or anything. The GPL is strictly an inherited "disease" as far as I can see.

Re:No distribution of the source?

[ElleyKitten]

ou're incredibly naive if you think an unmodified Linux kernel is capable of running an embedded device like that.... In other words, it *is* like it's something they wrote. They stood on the shoulders of others, but they still had to do their own work to get it to work with their hardware and do what they want it to do.

Ok, so they modified it. They're still uses other people's work. Let's say I take Windows XP and modify it. A lot. I make it into a live CD that can run on PPCs. Now, can I just sell copies of my spiffy WinXPlive without giving a damn what Microsoft says? I did all sorts of work on it. But so did Microsoft, so that would be copyright infringment. The GPL is no different, it just lays out the terms of licensing so you don't have to go track down the authors and pay them a shitload of money before using it. But the authors are still there, and it's still copyrighted.

Re:No distribution of the source?

[KillerBob]

But the authors are still there, and it's still copyrighted.

You're absolutely right. It is copyrighted. I'm not defending what they did, I'm just saying that it makes better sense from a corporate point of view to keep their source closed.

Re:No distribution of the source?

[Just Some Guy]

If you modify someone elses Work of Art (i.e. creating your own work based on the original), you need her permission.

I agree with the rest of your post, but this part is wrong. You can legally fold, spindle, and mutilate any copy of something you own (subject to any other contracts that may limit you) without asking permission of the author. Copyright is just that: the right to copy. It says nothing about the right to modify.

Re:No distribution of the source?

[jeremyp]

No, you have missed the point. If I bought one of these D-Link widgets with GPL code in it, the licence terms clearly state that I have a right to a copy of the source code since D-Link distributed the binary to me. D-Link have distributed GPL code so they have an obligation to supply the source code to the people they distributed it to regardless of whether they stop distributing it or not.

Re:No distribution of the source?

[civilizedINTENSITY]

IANAL..., But the person who gets to defend that right is the copyright holder, not you (the poor victim who depended upon the terms of the GPL.) If the copyright holder takes them to court, and accepts "court costs + stopping distribution", then that is it. I don't see what standing you would have to sue since it wasn't your copyright that was violated...

Re:No distribution of the source?

[Not The Real Me]

"...Seeing as they use off the shelf wireless chipsets, ethernet controllers, and such, there's absolutely nothing to stop a competitor from using the source code they would have to release under the GPL to manufacture a cheaper alternative that is functionally identical..."

If I was a maker of ATM machines, PDAs, embedded devices, etc, this is what my concern with GPL would be. I certainly would not want to sink millions of dollars into R&D on a product only to have a competitor cobble together a clone by benefitting from my company's R&D dollars.

Now, if GPL had some sort of time delay on requiring the release of code for use in a commercial product, hypothetically 30 months, then a manufacturer would have almost three years before a competitor can release a clone your product. Until GPL incorporates some sort of time delay for compliance, I suspect the BSD license and the MIT license are more comforting alternatives.

Re:No distribution of the source?

[zcat_NZ]

By strict interpertation of the law, perhaps.

Traditionally, those who are defending the GPL are happy the moment infringement stops and usually happiest if infringment stops because source code is provided.

As a general rule, nobody defending the GPL ever seeks damages or worries about previous infringing copies. We're a very forgiving crowd!

Re:No distribution of the source?

[Anonymous Coward]

It doesn't stop them from trying: http://en.wikipedia.org/wiki/The_Wind_Done_Gone/

Re:No distribution of the source?

[man_of_mr_e]

The quintessential example is GNU Readline. GNU Readline is a library that is deliberately licensed under the GPL (not the LGPL) in order to "encourage" people to GPL the rest of their software if they need use of it. Basically, linking the Readline library into your application and distributing it requires you to GPL your entire application, even though merely linking to an unmodified library could hardly be called deriving the work from it.

This aspect of linking which requires relicensing is what makes GPL detractors claim the GPL is "viral". Merely placing GPL'd code in the same process space as a non-GPL'd program requires the non-GPL'd program to "catch" the GPL (if the author want's to distribute it).

Re:No distribution of the source?

[mike2R]

That does make sense, thanks for the informative reply. I still don't think that you can properly use the word viral when you are using a modified Linux kernal, as I think is the case with D-Link, but I see where the analogy comes from now.

Re:No distribution of the source?

[TheRaven64]

ATMs are an interesting example. I am very surprised that they do not contain Free Software. Remember that the freedoms associated with Free Software only apply to those why buy (or are given) the software, not to the world in general. If I were purchasing ATMs for a bank, then I would be hesitant to buy them from a manufacturer that did not give me complete and unrestricted access to the source code so that I could have it independently audited.

Re:No distribution of the source?

[Paradise Pete]

You're incredibly naive if you think an unmodified Linux kernel is capable of running an embedded device like that....

I guess I didn't explain it very well, but that wasn't at all what I was saying. The OP said they'd just "move" to a different license. And I was attempting to make the point that it wasn't like they wrote something on their own, and they chose the wrong license. If they wanted to distribute under a different license they would have to use some other foundation.

Re:No distribution of the source?

[Pofy]

>Copyright by itself is viral. If you modify someone elses
>Work of Art (i.e. creating your own work based on the original),
>you need her permission.

Not completely true. I assume you are thinking on the "derivative work". That whoever is a concept that doesn't exist in many copyright laws in the world. What you say in those cases applies for things like making a translation of say a book. However, you do not nessecarilly need the permission to do such a work and you do get copyright on it. However, the exclusive rights to it for the copyright holder is the same as that of the original. But you can still create it for yourself and if you are otherwise allowed, for example to make a copy to give to a close friend (which many countries allow) you can do that too.

Works that are simply based on someone elses work but are considered to be a new work on its own (and thus not copy or simple trasnlation or similar) are considered new works and copyright belong to the one creating them. This is of course different from those countries that has the stron derivative work concept that US has for example but as I said, many countries are different.

Re:No distribution of the source?

[Schraegstrichpunkt]

I think you're right. However, if D-Link actually made the written offer for source code, and you notified them that you wanted the source code in exchange for the reasonable cost of physical distribution (thus accepting the offer), and they refused, then they would not be violating copyright law (because they would have complied with the GPL). However, they would be in breach of their contract with you. Furthermore, if they then tried to use "it wasn't an offer" as a defense against your claim, I imagine the copyright holder could hold them liable for copyright infringement.

It always amuses me how people try to wriggle their way out of the requirements of the GPL (which are quite reasonable, IMHO), and then expect to be able to distribute GPL-covered code anyway. It doesn't work, but people still try. The case of Slade and the QuakeLives project, though it didn't go to court, is still an entertaining read.

How arrogant

[TheSpoom]

We expect people to agree to our Terms of Use but we don't have to obey those from others when we use their products.

How hypocritical!

Re:How arrogant

[MrShaggy]

Nothing new here. Slashdot as a whole seems that way. It wants some sort of vindication that the gpl is valid, and c+d letters go flying. However when other companies, such as members of the **AA are involved, the crowd screams bloody murder. How dare these corporations excersize their right ? There goes my karma

Re:How arrogant

[Sique]

It's easy. It always depends on the rights you are defending. GPL is defending the right to copy, modify and distribute. *AA is defending the right to stop you from copying, modifying and distributing.

Re:How arrogant

[EvilIdler]

Are the same usernames against the *AAs maintaining their copyright while demanding
cease & desist on GPL violators? Slashdot has a lot of users, with different opinions,
and most of them wrong :)

Re:How arrogant

[MrShaggy]

Point! Counter-Point: Whether or not the terms of the agreement are for one person to copy more or less is irrelevant. Media is copy-righted. Either copy-right, or GPL is valid, because of legal issues, and the fact that the consumer is using the product, is aware of the license. Therefore bound to it.

Re:How arrogant

[TheSpoom]

The first line of my comment was meant to be a summary of D-Link's position as if they were speaking it, not Slashdot's. Hence the link to D-Link's terms of use.

Re:How arrogant

[partisanX]

GPL is defending the right to copy, modify and distribute

Yet the story is about the GPL preventing DLink from doing those very things.

Re:How arrogant

[ricree]

The GPL isn't preventing DLink from copying, modifying, or distributing. The only thing that they're preventing is DLink taking those rights from others when they use GPL'd code to make their programs.

Re:How arrogant

[mrchaotica]

Your "counterpoint" is stupid. Here's the bottom line: anything that increases the user's freedom is good. If copyright infringment (or better yet, DRM circumvention) does that, it's good. If the GPL does that, it's good. Legality is irrelevant.

Re:How arrogant

[Sique]

Media is NOT copyrighted. Works of Art are. And they are copyrighted to further the advance of Knowledge and Arts and increase the available works by encouraging artists to create new works by giving them for a limited time a certain control about the usage of the work.

The rationale behind copyright agrees that one of the necessary conditions to have Works of Art at all is to have a huge amount of Art and Knowledge accessible to everyone, and the more of those are available, the more new works will be created. In the end the right to copy, to modify and to distribute is a precondition for the creation of Art. On the other hand creation of Art takes time and costs money, so there has to be a way to reimburse the artist. Copyright does that by giving the artist a limited control over his works, e.g. giving him the right to stop copies, modifications and distributions he doesn't condone.

Re:How arrogant

[Name Anonymous]

Actually the problem with the *AA is how they're going about lawsuits.

Re:How arrogant

[partisanX]

I direct you to this from the slashdot post:
D-Link had claimed that the GPL was not 'legally binding' but have now agreed to cease and desist, and refrain from distributing the infringing product,

The very existance of the GPL is a recognition that creators have a right to attach conditions as to how people can use, modify, and distribute what they create.

Re:How arrogant

[zecg]

The GPL is basically a legal system hack to ensure that the corporations don't take everything. It exists precisely because such things as copyright laws and software patents have been made evil.

Re:How arrogant

[rjstanford]

The GPL isn't preventing DLink from copying, modifying, or distributing. The only thing that they're preventing is DLink taking those rights from others when they use GPL'd code to make their programs.

Not at all. Precondition: you have some GPLd code. You decide to release a product based on that code. How on earth does DLink releasing a closed-source product also based on this code in any way reduce your ability to do likewise? Or anyone else's, for that matter? What you seem to be saying is that DLink is stopping you from piggy-backing off of their code. Which is true, and also forbidden under the terms of the GPL (which they chose to license their base code), which is why they're being shut down.

The BSD license is actually designed to promote true freedom. Freedom, as in "Do what you want to with this, whether or not I approve of it." Not that the GPL doesn't provide for some great ideas, but its hardly a freedom-loving license.

Re:How arrogant

[squidsuk]

If you think that DLink should be freely able to copy, modify, and distribute code released under the General Public License, then I have no issue with that. However, by the same token, that would make all filesharing legal, since it would overturn copyright. Again, I would have no problem with that, which incidentally would also (by and large) render the GPL unnecessary for software anyway, since in effect the four freedoms would be available without the legal contortions of the GPL required to achieve it in a world of software licenses.

Personally, I would suggest that some more moderate reform of existing copyright might be less disruptive, such as reducing the duration to a more reasonable span (say 7 or 5 years), requiring registration to assert copyright at all (with the deposition of a copy in escrow, in the case of software including full source code), declaring ALL non-commercial copying and redistribution to be fair use, and maybe one or two other minor details.

Indeed, under such a more enlightend regimen, I don't think I'd have anything against increasing and enforcing vigorously criminal penalties for unauthorised commercial infringement. Easy to detect and chase down a money trail, easy to quantify damage when there are actual sale values and cash to count, as opposed to counting fantasy damages of number of copies * undiscounted RRP, and futiley scapegoating ordinary members of society who generally have few resources anyway for doing something that's becoming perfectly normal and natural for 21st century society, connecting and sharing with friends in a Network Age.

Re:How arrogant

[wfberg]

Nothing new here. Slashdot as a whole seems that way. It wants some sort of vindication that the gpl is valid, and c+d letters go flying. However when other companies, such as members of the **AA are involved, the crowd screams bloody murder. How dare these corporations excersize their right ? There goes my karma

Some differences;
- accusations of GPL breaches are usually well-researched and levied at the correct legal entity, where the *AAs have been known to send C+D letters based on similarity of filenames to people who don't even have computers.
- the GPL is aimed at preventing the formation of monopolies; as such, enforcing it doesn't entail monopoly abuses, whereas the *AAs are regularly accused of price gouging, etc.
- the *AAs tend to ask for huge dollar amounts of damages, in the hundreds of dollars per song or film copied. In this case no damages were sought at all, even though Germany does know statutory damages
- it's often argued that people who download content illegaly usually end up buying the stuff they like, or at least that they would never in the first place have bought the content. D-Link on the other hand used GPL'ed software to profit from it, and then didn't abide by its licensing terms.
- the burden for D-Link for 'staying honest' is much lower than the (monetary) burden for some teen who downloaded 1000 tracks. Even if you disagree with copyright fundamentally, you'd be less upset about D-Link having to do no more than include a written offer or a download URL with its kit than with some kid having to pay thousands of dollars of compensation.
- the *AAs even sue you if the stuff you downloaded is NOT available from them anymore; by contrast, once a piece of code is GPL'ed, it stays GPL'ed; there's no orfan-ware problem.

People get proportionately more upset if piracy is carried out by professional gangs who profit from it (selling illegal copies of windows to your mom, for example); if it concerns software from small (non-monopoly) companies or music from independent labels; if people who can easily afford it still pirate stuff just because they're cheapskates (e.g. fortune-500 corporations using illegal copies of winzip, which is $6 per copy in volume) etc. etc. etc.

So there are philosophical, moral, legal and practical differences between the two -- whether you agree with those is another thing, but there is no need for someone that supports enforcing the GPL and pirating Windows to be a hypocrite. And that's not even taking into account anti-corporate or communist themes.

Maybe some people aren't hypocrites, but just don't see the world as exclusively black and white. Just maybe they agree with some (application of) laws, and not others. "You're a hypocrite, because you depend on the law" is not much of an argument against people who want the law changed so they can depend on it better.

Selfish, perhaps you could levy that accusation. But hypocrites? Hardly.

Re:How arrogant

[bky1701]

The GPL is about keeping code free. The RIAA, is not.

Re:How arrogant

[Burz]

The **AA are trying to stamp out a tradition of Fair Use by locking-down the devices we own and making the mere reprogramming of such a device (whether shared or not) an instant crime.

Are OSS advocates doing the same for their works? No.

In skankazoid D-Link's case, I doubt their bias has much to do with protecting the interests of the end-user. Their capacity for respect stops at anything smaller than the size of an office park, with a seven-figure market cap and a team of lawyers flying a commercial banner.

Re:How arrogant

[TheSkyIsPurple]

So, what's more free than DLink just doing whatever they want?
Must be good since it's giving DLink, as the user, more freedom.

Re:How arrogant

[TheSkyIsPurple]

>The rationale behind copyright agrees that one of the necessary conditions to have Works of Art at all is to have a huge amount of Art and Knowledge accessible to everyone, and the more of those are available, the more new works will be created. In the end the right to copy, to modify and to distribute is a precondition for the creation of Art. On the other hand creation of Art takes time and costs money, so there has to be a way to reimburse the artist. Copyright does that by giving the artist a limited control over his works, e.g. giving him the right to stop copies, modifications and distributions he doesn't condone.

Not sure I follow you there.
I think we can call the Mona Lisa art. However, if someone makes a million copies of the Mona Lisa, I don't think more "art" was created. There was no creative involvement in creating those copies... just copying... and it's that creative spark that makes art.

For the CD side: Since the media isn't copyrighted, you can duplicated CD's all day long, but the actual art that is on those CD's is copyrighted, so you can't duplicate that part without the artist's consent... thus the RIAA is pissed.

For the GPL side: Since obtaining the GPL'd code actually requires the copying of the intellectual property over the Internet medium, you're in the same boat. Sure, there's nothing stopping them from copying bits, since those aren't copyrightable... but Copyright law forbids the copying of the code without the "artists" consent. (Which is explicitly given when following the terms of the GPL. Thus the GPL folks are pissed.

I don't see how the two issues are different really.
Either you can copy artists work willy-nilly, or you can't.

Re:How arrogant

[mrchaotica]

D-Link isn't the user; the user is the user!

Re:How arrogant

[kz45]

"GPL is defending the right to copy, modify and distribute."

If you close a GPLd app, you can still copy, modify, and distribute it.

Re:How arrogant

[partisanX]

If you think that DLink should be freely able to copy, modify, and distribute code released under the General Public License, then I have no issue with that.

Well I don't think that at all, I was very glad to see the GPL win here. Very very pleased, like that warm fuzzy feeling pleased.

My point is, the GPL is a contract that enforces the rights of creators over what they create. It is not meant to give license to everyone to freely do with the creation whatever they want, which is a view held by many people here. That view is wrong. You seem to recognize that in what you say here:
Again, I would have no problem with that, which incidentally would also (by and large) render the GPL unnecessary for software anyway, since in effect the four freedoms would be available without the legal contortions of the GPL required to achieve it in a world of software licenses.

You're absolutely right. Let me ask you(and anyone else) this... Why do people use the GPL over the BSD license? Why do they use a license at all?

Personally, I would suggest that some more moderate reform of existing copyright might be less disruptive, such as reducing the duration to a more reasonable span (say 7 or 5 years), requiring registration to assert copyright at all (with the deposition of a copy in escrow, in the case of software including full source code), declaring ALL non-commercial copying and redistribution to be fair use, and maybe one or two other minor details.

I agree with the duration of copyright, but I would not back registration as such things, as we have witnessed in patent law, tend to favor those with money over those without. I'm a little concerned about the "ALL" non-commercial copying. For example, I don't think anyone should have a right to distribute a thousand copies of an album someone paid money to develop, even if they're not profiting off of it.

Another thing that concerns me: Take what happened recently with Weird Al's video. I'm sure it will turn out fine for him, I'm heading to the music store on Tuesday myself, but, that was not right. The guy had a business deal lined up and someone who thought it should be their right to freely share for non-commercial purposes his video on the net, basically screwed his business deal. What gave them the right? Did they pour their time, energy, and money into production?

Re:How arrogant

[babbling]

No, the story is about DLink being offered a (free!) GPL license and refusing it, and yet continuing to distribute the code that they were offered the GPL license for.

Re:How arrogant

[Sique]

Just because it's not the media, that defines a Work of Art. You can copy a shopping list as often as you want, independent of the media it is stored on. You can make a hundred copies of bird voices in your front yard, no one has a legal right to object. As long as the content of the media is not copyrighted, the media itself is copyable at your will, except for some strange technical hurdle called "copy protection". This is actually the issue I have with copy protection schemes: They forbid you to copy something legally without it necessary being something that actually has a copyright or without the actual act of copying being forbidden.

Re:How arrogant

[Sique]

That's a matter of philosophy. BSD says: I don't care what you are doing with the code, as long as you keep my copyright notice intact. Some could call this "freedom", other say: "This is just laissez-faire, without actually caring for freedom".
GPL says: You are free to do anything with the code, as long as you give others the same rights to your work I gave you to mine. Some call this "restrictive", others call this "promoting freedom".
It depends on your point of view. If you are just looking which license gives you the most freedom in your own actions, BSD wins. If you are looking which license adds most to the heap of code you are being free to use, GPL wins.
It also depends on how you look at the original rationale of Copyright. BSD somehow shortcuts copyright by just reducing it to you being forced to admit, that your product based on BSD code is not solely your own idea. GPL says: The idea of copyright is to increase the number of available works by giving the creators some incentives to actually create. Normal copyright solves this by giving the creators a limited control for some tome. GPL solves it by exchanging the control with the ability to get back all modifications others do to your work.

Re:How arrogant

[TheSkyIsPurple]

Gotcha. I think we actually agree.

Can't use GPL code willy-nilly, since it is copyrighted.
Can't distribute the copyrighted audio from a CD because it is copyrighted.
Can make local copy for backup purposes, or reference via other methods. (like buying a book, and copying down some tables to a notepad for future reference)

Wait, what was the topic again? =-)

Re:How arrogant

[squidsuk]

I was very glad to see the GPL win here. Very very pleased, like that warm fuzzy feeling pleased.

As was I. Having said that, I do regard the GPL as a means to an end, a way of using present copyright and licensing regimes to achieve the four freedoms for software, or something close to it. Under other circumstances, the GPL might not be necessary at all.

My point is, the GPL is a contract that enforces the rights of creators over what they create. It is not meant to give license to everyone to freely do with the creation whatever they want, which is a view held by many people here. That view is wrong.

Well, the GPL isn't a contract, because it's unilateral, and it's not necessary to agree to it in order to use GPL software, though redistribution is of course copyright violation unless you comply with the terms required by the GPL to permit redistribution. That's why I point out to anyone who thinks that because it's open-source it isn't copyrighted and they should be able to do what they like with it that the corollary implied is that copying and redistributed proprietary licensed software must be equally OK (or not OK).

Why do people use the GPL over the BSD license? Why do they use a license at all?

The obvious reason to use the GPL over the BSD license is that you know your work can't easily be rolled into proprietary code, for someone else to profit from, without ever giving back anything to you or the community. That's made worse by perpetual copyright - it wouldn't be quite so bad if the improved source code would become available anyway in a few years time, and it might also be a disincentive to lift GPL code relying on proprietary/hidden source code to hide the fact, if the developers knew that their indiscretion would become publicly visible before too long.

I agree with the duration of copyright, but I would not back registration as such things, as we have witnessed in patent law, tend to favor those with money over those without. I'm a little concerned about the "ALL" non-commercial copying. For example, I don't think anyone should have a right to distribute a thousand copies of an album someone paid money to develop, even if they're not profiting off of it.

Copyright duration is an obvious injustice at present. The point of registration is to ensure that only what has potential commercial value is copyrighted. For example, not every email or other document would automatically be copyright, allowing "copyright infringement" to be used against whistleblowers, and work created without the thought of commercial profit could immediately enter the public domain, instead of requiring the creators to explicitly disclaim automatic copyright.

However, I would not want to see the registration process being controlled by a government organisation, like patents or like vehicle licensing, for obvious reasons about the way such organisations tend to become dysfunctional. Instead I would suggest a system of registration in private hands, where in order to bring suit for copyright violation it would be necessary to refer to the escrow deposit of the infringed work on a particular date. That would make it obvious whether it was still within copyright or not, and would ensure that the work became available at the expiration of copyright without being "orphaned" and lost if the original creator was no longer extant. The deposition of a copy of the work could be with a solicitor, for example, or with other organisations that might be formed for the purpose, a bit like the way domain registration works?

As far as permitting non-commercial copying, on any scale, the theory there is that it makes it very easy to justify pursuing commercial infringement vigorously. Under those circumstances, then, I'd suggest that every non-commercial copy made actually increases the commercial value of the work, by acting as free advertising

Re:How arrogant

[partisanX]

to achieve the four freedoms for software

Which are your ideals regarding software. I want to be clear on this and make sure you see them as your ideals or do you see them as something else?

Well, the GPL isn't a contract, because it's unilateral, and it's not necessary to agree to it in order to use GPL software,

Well, I don't know what the technical legal terminology would be, but defacto it acts as a contract that you do indeed have to agree to to use GPL software. This conversation would not exist if Dlink could use GPL software without having to agree to the GPL.

The obvious reason to use the GPL over the BSD license is that you know your work can't easily be rolled into proprietary code, for someone else to profit from, without ever giving back anything to you or the community

Right, in other words, the creator retains more control over his creation. That control comes directly from placing limits on the consumer of that creation.

The point of registration is to ensure that only what has potential commercial value is copyrighted. For example, not every email or other document would automatically be copyright, allowing "copyright infringement" to be used against whistleblowers, and work created without the thought of commercial profit could immediately enter the public domain, instead of requiring the creators to explicitly disclaim automatic copyright.

I would think a better answer would be to waive copyright obligations in the case of whistleblowers. Creating a regristration process which I'm assuming would have to go to through yet another government agency, will favor those with money. No matter how cheap you make it at first, no matter how accessible you make it at first, it will still favor those with money over those without. Worse, if history is any teacher, it will become more and more convoluted over time, and more and more expensive over time, and will eventually reach the sorry shape of our patent system over time.

Unless you can convince me it won't, I will never agree with registration.

As far as permitting non-commercial copying, on any scale, the theory there is that it makes it very easy to justify pursuing commercial infringement vigorously. Under those circumstances, then, I'd suggest that every non-commercial copy made actually increases the commercial value of the work, by acting as free advertising.

It's a nice theory. There's been a lot of nice theories that haven't worked in practice. Is this one of them? No one can be sure until it's tried, but in my opinion, it won't work that way in practice. In my opinion, once you take away the social perception that copying music is an illegitimate way of obtaining it, very few will see a reason to purchase it, save for live performances.

Unreleased content which is stolen and released without permission I would regard almost as a kind of "trade secret", and given that I'm proposing generous liberalisation of non-commercial copying of released content, then I find it easy to propose also that distributing unreleased content acquired illegitimately should be a criminal offence vigorously prosecuted (with a suitable exception/defense for whistleblowers acting in the public interest, of course).

what I see you suggesting is a generous liberalisation with other peoples work that they financed, they poured their time and energy to produce, and yet, the consumers and not the creators, get to do with it whatever they want. It does not matter whether or not you don't see it that way, many creators do see it that way. Where do their rights come in all this? I reject fully and completely any assertion that someone is somehow less free because they can't freely copy other people's creation. I suppose, though, that they are less free, in much the same way that people are less free because they can't tell me how to run my business, tell me how to share my ideas, or tell me what to do with my work. Not

Re:How arrogant

[squidsuk]

Which are your ideals regarding software. I want to be clear on this and make sure you see them as your ideals or do you see them as something else?

Free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software. More precisely, it refers to four kinds of freedom, for the users of the software:

• The freedom to run the program, for any purpose (freedom 0).
• The freedom to study how the program works, and adapt it to your needs (freedom 1).
  Access to the source code is a precondition for this.
• The freedom to redistribute copies so you can help your neighbor (freedom 2).
• The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3).
  Access to the source code is a precondition for this.

See The Free Software Definition.
The GPL is a means to achieve and make irrevocable Free software in a world with strong copyrights, in effect by subverting copyright and turning it on itself. This is why "copyleft" is sometimes described as a "copyright hack". The GPL, however, is a means to the end, and is not the end in itself - ensuring that the four freedoms are available to users of software is the objective.

Well, I don't know what the technical legal terminology would be, but defacto it acts as a contract that you do indeed have to agree to to use GPL software. This conversation would not exist if Dlink could use GPL software without having to agree to the GPL.

It cannot be a contract, because it's unilateral. You can purchase or be given GPL software, and you need not agree to the GPL to use the software, nor does using the software constitute de facto agreement to the terms of the GPL. This is explained here: If I get some software under the GPL, do I have to agree to anything?. While agreeing to the GPL does not incur any obligations on you, neither is it required to use the software. This, incidentally, is one reason the GPL is very strong, as it is not like an EULA which purports to unilaterally bind you by the mere fact that you have received or use the software.

What does incur obligations, however, is redistributing the software, which is what DLink did. More precisely, it is not a GPL violation, but a copyright violation. By and large, redistribution of copyrighted works, including GPLed works, is not permitted in most jurisdictions today. The only possible get-outs are to not use GPLed code, and write one's own code, or to accept the validity of the GPL and comply with the necessary requirements of the license, such as those related to source code. If, on the other hand, one disputes the validity of the GPL, as DLink did, then we fall back to plain old copyright violation.

Right, in other words, the creator retains more control over his creation. That control comes directly from placing limits on the consumer of that creation.

Oddly enough, in some ways placing work under the GPL involves the creator giving up control to a wider community, especially if the maintainer accepts back improvements to the original also under the GPL rather than requiring copyright assignment to themselves before doing so. After a little accumulation, there are so many "authors" that the work can never be reclaimed or taken non-free, and the community can decide to take it away from the original creator by forking the project and assigning new maintainers. This is not common, partly because the creator generally knows it's possible, but it can happen, as with XFree86/Xorg and more recently Joerg Schilling's cdrecord tools being forked by Debian.

By contrast, the only freedom I see offered by the BSD license which is not also offered by the GPL is the freedom to deny further recipients the freedoms which the

Re:How arrogant

[partisanX]

GPL says: The idea of copyright is to increase the number of available works by giving the creators some incentives to actually create. Normal copyright solves this by giving the creators a limited control for some tome. GPL solves it by exchanging the control with the ability to get back all modifications others do to your work.

I agree with your general point, but I would rephrase that last sentence as "GPL solves it by excercising the control in such a way as to gain the ability to get back all modifications others do to your work." I know that sounds semantic, but it is truly more in line with my personal point of view(which you are free to disagree with of course), that the GPL does not lose control for creators, it just exercises their control in a way more in line with different ideals and/or goals.

Re:How arrogant

[partisanX]

Nice spin doctoring. Here are the facts:
You don't take someone to court for refusing a license, you take them to court for violating a license.
GPL-Violations.org is not called GPL-Refusers.org.
They violated the GPL and as such, they are restricted by the GPL from distribution.

You partisans on this subject would serve your cause better, by avoiding such cheap spin doctoring tactics as this. It may be popular among the choir, but it keeps people not a member of your choir from taking you seriously. That should be important to you if you really want to advance the GPL.

Re:How arrogant

[babbling]

I realise it seems that way, but you're forgetting one thing: copyright law is restrictive by default. No one actually has to agree to the GPL to use a GPL'ed program. If they want to distribute it, however, they usually wouldn't be able to because they need the permission of the author(s) first. The GPL, if they agree to it, grants them the distribute permission as long as they agree to some other terms. (must include source code or a written offer for it, and so on...)

Re:How arrogant

[partisanX]

Sorry for the delay of my reply. I actually did try to reply shortly after you posted, but my browser crashed after I had typed quite a bit...

Anyway, rather than continue this conversation on a point by point basis, I'm just going to cover a few things:

After you posted that bit about free software, I went out and studied the FSF movement, and I can honestly say, I fall into the open source camp, not the FSF camp. While I respect your ideals and opinions(a good deal), I have serious economic concerns regarding the radical change in the view of software(and really, IP in general) that you and the FSF advocate. It is not that I think we should continue to have crappy copyright law(and I do agree with you on the brokenness and outdatedness of our copyright law) in the name of economic gain. It is that too rapid or radical a switch at this point, could have disasterous effects on the world economy. I'm not saying this because of any FUD I've read, I'm saying this based on my last few years in studying the global economy and global trade.

At the risk of igniting a trade or economics debate(not my intent), I just want outline why I say this, so you won't chalk this up into just some troll spouting FUD. When we began the integration of the economies of the world, manufacturing was picked up by the poorer countries based on our experience that while we would lose manufacturing jobs in some sectors, the selling our IP would make up for the losses. This would naturally, though not painlessly and certainly not overnight, move the economies towards balanced trade. Of course, I say this pushing aside the concept of imperialism that has reared its ugly head again.

Now that we have opened our markets to so many, to take away IP as it has **EVOLVED** to be, could deal a devastating blow to not only our economy, but to every economy that ours is intermingled with. I could say more and go into more detail, but I think this will serve at least to explain my general concern.


Now one thing I want to apologize for is this:
You'll notice that I specifically said registration should be decentralised, and in private hands

I did not notice that, I read right past that. I've been fighting a flu for over a week now so my head isn't the clearest. Even so, in private hands, my concerns remain, especially with regards to creating a system that favors the rich with regards to access to copyright. I am really dead set against that. In addition to having a society that has safety nets for the poor, I strongly believe in having a society that provides as many opportunities for the poor as possible. I believe copyright and IP in general is one of those areas where, with some reform of the system, the playing field can be leveled and the "little guy" can have equal opportunity. On that note:

An alternative might be to simply require that copyright in the work be asserted to take effect

I would back this one hundred percent.

Before I close this, I'd just like to say that just because intellectual property is a relatively new concept(as we understand it now anyway), that doesn't mean that it's entirely a bad one. Seperation of church and state is a relatively new concept, one I would not like to see disappear. :) I'm not saying it's as important as seperation of church and state, I just think when we consider concepts like that and before we make judgement calls on them, that we should seriously consider, without giving into FUD, the real impacts that doing away with the concept could have. I say this in general, I do believe you've considered it to one degree or another(I've been really thinking this stuff since this conversation started). To be fair to you, it seems clear to me that you think the concept needs to be altered, as opposed to doing away with entirely, based on you wanting to see copyright altered. On that I agree, I just disagree, at this point in time, with what degree it should be altered.

Thanks for this conversation. You've expanded my understanding on a lot of things in this exchange and I sincerely appreciate you taking the time to discuss this with me.

The same D-Link?

[Anonymous Coward]

That's interesting. I recently purchased a range of Gigabit network cards. An Intel Pro/1000, an Blekin and a D-Link. The D-Link box contained a printed copy of the GPL. So they clearly do consider the GPL binding, otherwise why would they have bothered? This is the first time I have ever seen a printed GPL included with a product.

I havn't checked the driver CDs in the Intel & Belkin cards yet to see if they have Linux drivers on them. While I'm at it, also shame on Intel for not mentioning Linux on the box; Novell & Windows logos are there, but nothing for Linux (The Belkin & D-Link boxes do not mention any OS compatability at all)

Re:The same D-Link?

[Sique]

Accompaning the product with the GPL is only one of the obligations. Making the source code available for copying, modifying and distributing is another one. Obviously D-Link decided not to follow this obligations and rather agreed to stop the distribution.

Re:The same D-Link?

[Anonymous Coward]

This is the first time I have ever seen a printed GPL included with a product.

Not a TiVo owner, I see.

Re:The same D-Link?

[Tim C]

This is the first time I have ever seen a printed GPL included with a product.

If I recall correctly, I got a printed copy of the GPL with each of my Netgear products (2 wireless APs), along with an URL from which to download the relevant source. I can't vouch for the source though, as I never bothered.

Re:The same D-Link?

[Anonymous Coward]

I bought a Netgear access point earlier this year that contained a printed copy of the GPL. The AP's firmware is some version of MontaVista Linux, or something like that.

Re:The same D-Link?

[Anonymous Coward]

I bought a Belkin Wireless G Router yesterday and they do mention Mac OS X and Linux as explicitly supported. I had a Linksys WRT54G before, however it just crashes after you connect any Mac OS X machine to the device (physical Apple or even with VMware image).

Re:The same D-Link?

[josh82]

"The D-Link box contained a printed copy of the GPL. So they clearly do consider the GPL binding, otherwise why would they have bothered?"

I suspect that they, like many, might see a distinction between actually considering a document legally binding and the prudential practice of covering one's ass.

Feiern Sie!

[Anonymous Coward]

Dieses ist ein großer Sieg für den GPL. Es hilft, sicherzugehen, daß aller GPL des freien softare Remains gründete, um zu verwenden,

Re:Feiern Sie!

[udippel]

Why a comment in German; and furthermore in incomprehensibly bad German ?

But why would I answer to an AC, anyway !

Re:Feiern Sie!

[Anonymous Coward]

I undersood the original poster's incomprehensibly bad German.

What is the problem with it?

Re:Feiern Sie!

[Qbertino]

Wenn Sie verbrechen die GPL in der deutschen Landen von Germania dann Sie werden begotten sue der living daylighten out of you sorry ass. Jawohl!

(Hopefully funny for german and english speaking people alike)

reperations

[darkchubs]

without seeking damages.. GPL has no teeth. more of a, "lets infringe and see, whats the worst that could happen" attitude. asside from that it COSTS money to goto court in the fist place. If the RIAA didnt seek damages would anyone have stopped Kazaing?

Re:reperations

[lixee]

If the RIAA didnt seek damages would anyone have stopped Kazaing?

Most people stopped "Kazaing" 'cause of the inherent malware not the RIAA.

Re:reperations

[Anonymous Coward]

I'm not sure they have enough juice (read: money) to actually sue them for damages, since that'd be a much larger case than just C&D.

Re:reperations

[NewToNix]

without seeking damages.. GPL has no teeth. more of a, "lets infringe and see, whats the worst that could happen" attitude. asside from that it COSTS money to goto court in the fist place. If the RIAA didnt seek damages would anyone have stopped Kazaing?

To seek damages you must be able to make a supporting case that damage actually occurred. This is why the **AA's claim that every song downloaded is a sale they lost (stupid argument, but the one they use for the damages part).

Violation of the GPL is more like trespass - you do not need to show a person damaged you or any other thing... merely that they trespassed.

Under many legal systems you can not even bring a court action unless you can prove (or at least make a argument, as the **AA does) that you actually sustained a quantifiable 'damage'.

So what the GPL actually does is more like: "If you trespass, we will ask you to abide by the terms of crossing our 'land', if you do then you may cross and no trespass will have occurred. But if you do not agree to the terms of use, then we will have the sheriff come take you off our land."

It is inherently difficult to show quantifiable damage for the use of something that is free to start with.

This is one of the reasons for version 3 of the GPL - clarity over what actions you may be liable for if you violate the GPL.

Re:reperations

[kfg]

. . .without seeking damages.. GPL has no teeth.

Damages are about financial loss.

Copyright is about copying; monopoly. What you do with a monopoply is largely up to you; within the limits of law. You may choose to exploit it for financial gain or not. If you do not that does not infringe on the enforcability of your legal monopoly.

The GPL requires a sharing of code. Code is what you can demand in court. Those are the only teeth that the GPL is designed to have. It's about the code, not money.

If you want money for your code, just use another license, but don't use the GPL and expect to hold the code close. The license has been shown to have teeth.

KFG

Re:reperations

[mrchaotica]

In that case, what they ought to do is demand that the source code be released without giving the option to merely cease and desist. The violation has already occurred; users already have devices that they should be free to modify but aren't; therefore, releasing the code is the only reasonable outcome because it's the only thing that actually fixes the problem!

Of course, since IANAL I don't know if this is actually possible. It could be that the damages must be monetary. In that case, they ought to demand damages equal to the amount it would cost to buy the code from DLink, and then buy the code and assign copyright to the Free Software Foundation.

Re:reperations

[kfg]

In that case, what they ought to do is demand that the source code be released without giving the option to merely cease and desist.

That might well be within their legal powers, although outside the scope of the actual suit. Whether they ought to or not is a moral/ethical problem. It is the same as saying the the RIAA ought to sue the pants off anyone they think is violating, instead of demanding that they cease and desist.

. . .they ought to demand damages equal to the amount it would cost to buy the code from DLink, and then buy the code and assign copyright to the Free Software Foundation.

D-Link's code that has been "infected" by the GPL has no monetary value. It only has barter value for code, as defined by the GPL. D-Link's code that has not been "infected" is theirs to do with as they please. They cannot be compelled to sell; and if they wish to sell it is D-Link; and D-Link alone, that decides what they want to charge for it.

The primary goal of the suit has been met, getting people to take the GPL as a serious, enforcable license and understanding that violating it can result in financial loss.

KFG

Re:reperations

[TCM]

I have read the verdict.

In order to prove the copyright violation, the plaintiff had bought a device and reverse-engineered the firmware on it.

He successfully demanded the purchase price and expenses for reverse engineering. So D-Link now has to pay him back the price of the device - which he in turn must return back to D-Link of course - and 4 hours at 140,-EUR each.

Plus, of course, loser pays.

Double Dumb

[doublebackslash]

Dlink could have cheerfully continued to distribute their product but simply made available the source code from the kernel. Include a little piece of paper in the bodx that says something to the effect of, "This product is power by the Linux Kernel. In accordance with the GPL the source code for GPL software running on this device can be downloaded from www.dlink.com/GPL under [model number]. Please note that this product also contains proprietary software not included in the GPL." They can use linux for pretty much free (bandwidth for the few who download and the cost of ink) and the GPL is upheld. Pretty much the GPL is a 'give credit where credit is due' licence, with derivative works included. How dumb can their legal department be? Unless, of course, they are lining up to turn their backs on Linux =( I hope not, it is a great tool that they should be using! They just have to follow the rules.

You know what really burns me?

[hullabalucination]

I've got a Belkin F5D8230-4 MIMO wireless router and the matching F5D8010 cards. Airgo makes the chipset on both. Guess what the router's internal OS is? Guess which OS doesn't have driver support from Belkin/Airgo for the card? I know--this is probably off-topic, as Airgo does release some parts of the router's bits and pieces to the public. That being said, however, to me it's like a violation of the spirit of the GPL to make use of the GPL'd OS to make your product a success, then turn around and very pointedly ignore the support needs of the folks whose code you depended on to get your product off the ground (and Belkin wireless pre-N stuff is exceedingly popular now, as even a casual scan of the Wireless Aisle at the Usual Retail Outlets will confirm). Reading the forums, there's a lot of Linux folks out there who'd love to have a bona fide driver available from the OEM. Probobably a few of whom have contributed code to the OS at one point or another which Belkin/Airgo is dependent on.

At least you can get the card to work via the NDIS kludge (but not in every case, and not even using Belkin's Win32 drivers). I guess I shouldn't complain. WinXP-64 campers are completely out in the cold with this kit, so my partner won't be able to upgrade her Win2K any time soon.

* * * * *

The preceding poster is a wholly owned subsidiary of the the Mitsubishi Corporation and his post may not be reproduced, in whole or in part, without the consent of Major League Baseball.

Did it ever occur to either you...

[partisanX]

...that your perceptions are maybe the result of different groups of people comprising the slashdot community? I've found that my own opinions on certain subjects are in a minority, while on other subjects they seem to be in the majority. I've even witnessed that on certain topics, moderation of certain viewpoints that you think would be related, turn out differently depending on the topic. I suspect this is due to many people, like myself for example, who just don't read certain topics, while reading other topics faithfully.

I myself have a very low opinion of those who think they have a right to copy whatever they want because "information wants to be free". I see such people as manufacturing reasons to justify their own shoddy behavior. OTOH, I have a very high opinion of the GPL(and other open source licenses) and those who defend them.

Just keep that in mind.

Re:Did it ever occur to either you...

[MrShaggy]

Of course. Thats why I posted it as a generality. Most of my statements are to that fact. Lots of differing opinions is what makes the place good. Its maybe an irony, that slashdot is promoting the use of c+d letters.

Re:Did it ever occur to either you...

[squidsuk]

Where's the conflict between wanting people to be able to copy, modify, and redistribute what they receive, and supporting the GPL which manages to achieve the trick of achieving that for software in a world of strong copyright? The stronger copyright is made, the stronger the GPL becomes, and the more it can be enforced; conversely, weakening copyright weakens GPL enforcement but equally makes it less necessary. Given the circumstances we find ourselves in, with perpetual copyright and looming digital restrictions, the GPL is very necessary, including version 3 (though it needs to be carefully drafted).

Failing that, abolishing copyright entirely would, IMHO, be better than what we have now. Although I also believe that some relatively simple and sane reforms (described in another post in this thread) would be less disruptive; but if established interests and copyright holders won't allow that then maybe it will have to happen by revolution, with changing technology and easy social networking and filesharing making copyright unenforceable in practice anyway. That would be more disruptive, but maybe it's unavoidable, as organisations often don't react sanely to their business models being swept away by disruptive technological change.

Re:Did it ever occur to either you...

[Dun Malg]

Its maybe an irony, that slashdot is promoting the use of c+d letters.

But you see, you never hear anyone on slashdot say anything against the idea of C&D letter themselves, only their use as a strong-arm tactic to enforce the current bought-and-paid-for copyright laws. It is entirely consistent, as the GPL is a means of turning the copyright system against itself. Pointing out such "ironies" makes you sound like Steve Martin in The Jerk, shouting "These cans! He hates these cans!"

Re:Did it ever occur to either you...

[sydb]

Abolishing copyright doesn't get the source into the hands of the people, though, only the binaries, and what use are they, as they can't be easily modified.

Re:Did it ever occur to either you...

[squidsuk]

Abolishing copyright doesn't get the source into the hands of the people, though, only the binaries, and what use are they, as they can't be easily modified.

In a world without copyright, that turns out to be less of a problem than you might think, because it then becomes possible to redistribute annotated disassemblies, and creating source from the binary under those circumstances I'd suggest is ideally suited to the kind of wide-scale collaborative effort that's made FLOSS so successful - first simple disassemblies might be distributed, then people could annotate sections, even rewrite section by section in higher level languages, and you'd soon have source code, and probably surpass the original program while you were at it

All a bit messy, however, and that's why although I wouldn't mind abolishing copyright, as an alternative I'd also favour substantial reform, permitting the distribution of binaries protected by copyright (for limited duration) without source code, but only gaining that protection if a copy of the binary and the source code were deposited in escrow. That would build into copyright law GPL-like guarantees that the source code would become available to the public within a defined time, whatever else happened - and the commercial developer would have a few years (a) to profit from what they'd produced and (b) to develop new and enhanced and innovative replacement versions which they could copyright in the same way, continuing the cycle.

US Courts

[aaronfaby]

Well, as much as I'm happy that the GPL was upheld in a German court, I seriously doubt that the GPL would mean much in US courts. As we say in the US, if you don't like the law, lobby like hell to get it changed!

Re:US Courts

[novus ordo]

I seriously doubt that the GPL would mean much in US courts

Really?

Re:US Courts

[Aim Here]

Obviously you're unaware of Wallace vs FSF and Wallace vs IBM, RedHat and Novell, where some net.kook called Daniel Wallace alleged the GPL was an antitrust violation. He lost because his "case" was so ludicrious it couldn't even get into a courtroom, although the stupid cunt has wasted a pile of money and time and effort in appealing to the Seventh Circuit.

The Judge in the FSF case even said:
"[The GPL] acts as a means by which certain software may be copied, modified and redistributed without violating the software's copyright protection. As such, the GPL encourages, rather than discourages, free competition and the distribution of computer operating systems, the benefits of which directly pass to consumers. These benefits include lower prices, better access and more innovation."
and the IBM judge was similarly positive about it.

SCO vs IBM is likely to involve some GPL-related shenanigans in the near future too...

mnb Re:Feiern Sie!

[Anonymous Coward]

Gestorben ist nicht, was für ewig ruht, und mit unbekannten Aonen mag sogar der Tod noch sterben.

Re:mnb Re:Feiern Sie!

[kswtch]

with linux, everything is possible

I Don't Like D-Link Much

[jack_csk]

Besides the GPL that they had violated, let's not forget their stratum-1 NTP server abuse.

Oh, and if you ever had called their tech support for a bad product, you would how clueless and poor service they provide. I used to call them, telling them about a home router DI-604 that would become unresponsive (say, stop assigning DHCP address, router internal ip address not response to ping - even I setup the ip address manually) after a few minutes of last reboot, even with the router disconnected any other networking device. Their tech support, who has an Indian accent, kept telling me to reinstall Windows - even I told him that I also tried Linux, both installed one, and Knoppix LiveCD.

Then, you know what? The tech support refused to assign an RMA# to me, since that piece of shit device can still work for that "few minutes" after reboot. I asked to speak to the supervisor, but was turned down without any reason. I know it is not due to any of my other devices / computers because I tried another Netgear home router (it worked perfectly), and even tried to unplug everything for that DI-604.

As a result, I wowed not to buy any other D-Link product, and I kept recommend people against their products.

Re:I Don't Like D-Link Much

[mrchaotica]

Their tech support, who has an Indian accent, kept telling me to reinstall Windows - even I told him that I also tried Linux, both installed one, and Knoppix LiveCD.

You should have claimed you tried using a Mac. (Actually, you should have sued D-Link in small claims court, but the first suggestion is simpler.)

Sorry, no.

[imsabbel]

You forget that the GPL is about as viral as AIDS.

If they didnt anything further than running a stock linux system, they would have a hard time not releasing own source, too.

Re:Sorry, no.

[MoralHazard]

You forget that the GPL is about as viral as AIDS.

Flamebaiting jackass.

Where are the kernel devs?

[metamatic]

No doubt the kernel developers will be quick to rush to D-Link's defence. Surely it's intolerable that the GPL restricts D-Link's freedom to use the kernel in this way, and attempts to force a particular moral code?

Re:Where are the kernel devs?

[Anonymous Coward]

No doubt the kernel developers will be quick to rush to D-Link's defence. Surely it's intolerable that the GPL restricts D-Link's freedom to use the kernel in this way, and attempts to force a particular moral code?

You're fucking retarded. That's not a troll or flamebait, it's simply the only rational reply to your comment.

Was it an attempt at some kind of humour? A failed attempt to make some kind of point? Some kind of "BSD is best and I'm going to prove it by saying something that makes no sense" kind of thing?

Just curious. You're still retarded.

Re:Where are the kernel devs?

[metamatic]

Go read the GPL v3 discussion from a couple of days ago, fuckwit.

Not a test of the GPL

[foreverdisillusioned]

Many people (apparently even those in charge of large companies) seem to have this very strange idea that the GPL is not valid, and that because of this they can do whatever they want with the work in question. The premise doesn't have any basis in reality, but the conclusion is sheer insanity. It's somewhat akin to walking into a liquor store, noticing that their liquor license has recently expired and then stealing on their booze, claiming that because it can't legally be sold it must be free. The GPL's validity as a license has nothing to do with copyright law, and those people who have licensed their work under the GPL have explicitly NOT placed their work in the public domain. Hell, D-Link doesn't have (to my knowledge) a publically availible license for their proprietary code at all! That must mean it's public domain, right?

As much as I'd like to see a legal test of the GPL (not because I think it's invalid, but because coporations will become much more willing to deal with it, once it's been proven in court), this is simply a very, very basic test of copyright law. It's amazingly basic, but apparently some people still don't get it: D-Link doesn't think the GPL is a valid contract? Fine, then they're not licensed to distribute the code at all!

Re:Not a test of the GPL

[Tim C]

The GPL's validity as a license has nothing to do with copyright law

How so? Without copyright law, the GPL would have no teeth, as when you violate the GPL, it's copyright law that you'll be sued under. (As when you violate the GPL, you no longer have permission to distribute the offending code, and so are infringing copyright)

Re:Not a test of the GPL

[foreverdisillusioned]

*basic, non-contractual copyright law. Copyright law without anything extra added, e.g. the copyright law that takes effect if the GPL is ever declared invalid.

Re:Not a test of the GPL

[wrook]

As much as I'd like to see a legal test of the GPL (not because I think it's invalid, but because coporations will become much more willing to deal with it, once it's been proven in court), this is simply a very, very basic test of copyright law.

The thing about the GPL is that it will never be tested in court. For precisely the reason you give. Either you accept the GPL (meaning you accept it and don't think it's invalid), or you are faced with dealing with the situation under very, very basic copyright law.

The only time it will come up in court is when someone accepts the GPL. It seems to me (not being a lawyer though) that the agreement would be under contract law and subject to the normal conditions for a contract. I suppose it might be possible to suggest that the contract is invalid for some reason (for instance if I was putting a gun to your head and telling you that you must use my library). But I'd be willing to bet that the contract for that person would be invalid. Nobody else would get to use the code...

Re:Not a test of the GPL

[gtoomey]

If the GPL is not valid, the source code is subject to copyright law.
You have to negotiate with the copyright holder directly to use it, just like a book author negotiates with a publisher.

German law system is good more often than bad

[Qbertino]

This is Good News.

There are parts I really do like about the german law system. For one, it's 'loser pays all'. Which means, if you're right, it's actually reasonable to defend yourself, even if it costs a little. And this also means that big entities can't just go around sueing everybody and everything to chunky kibbles. Because if they lose, they have to pay. Which even corporations can only afford that often.
#2: Civil lawsuits over money have their amount also judged by the jury, which prevents insane amounts being sued over and keeps the legal-system-trolls in check.
These are both 2 large downsides I'd actually change about the US legal system right away.

Re:German law system is good more often than bad

[headLITE]

The reason for #2 is that there are no punitive damages in Germany. You can get compensation, but you don't get to punish your opponent for his wrongdoings by taking all his money.

Re:German law system is good more often than bad

[lachlan76]

Because if they lose, they have to pay. Which even corporations can only afford that often.

I'm assuming that the judge can overrule that though, correct? Otherwise the more impressive legal teams that corporations may have access to would need to be paid for by individuals who try to fight something but lose, which hardly seems fair.

It's the FDR for God's Sake -- you can't even own

[Anonymous Coward]

It's the FDR for God's Sake -- you can't even own a WWII helmet without the threat of jail time.

GPL Comments

[hackus]

The GPL is a method and a means to design, build and execute software engineering that is self sustaining, and allows others to contribute, pass those contributions on and be rewarded for thier labor in real cash.

Something the BSD style licenses doesn't do. (i.e. take our our code we don't give a damn we are your slaves.)

By forcing contribution back into a products process and life cycle, which is what the GPL does, better products are produced because people are allowed to build on each others work.

Patents and intellectual property laws as defined in the USA seek to prevent this, and in essence prevent new products from being built because Patents can be formed about the evolutionary processes of science, technology and human social interactions.

Whats worse, you don't even have to make a product, or a prototype of your idea. All you need is a bigger pile of cash than anyone else to enforce a patent filing.

I am all for the GPL v3, because it specifically attacks patent law and american corporate interests in such law as currently defined, and prevents said companies who participate in the open source engineering and scientific methods from destroying the communities creativity by attempting to inject code or ideas that restricts or prevent the use of open source software/ideas.

(i.e. Trusted Computing Nonsense, DMCA Act Nonsense)

This has a chilling effect on innovation. (i.e. look at ANY Microsoft product family and it is easy to see each product is designed to make you spend more money and lock you in rather than solve a business or scientific problem.) I point out, that there is no freaking way, a company like Microsoft should be writing anything about code quality procedures in their Hypocritical and quite hilarious "Microsoft Press" series of building better software. Oh yeah, I can see how that plays out in board meetings....

"Bill: Mmmmm, so....we are charging $150 an incident to fix our crappy software.....lemme see now.......why are we improving code quality again and how does that make good business sense to spend more money to produce better quality software?"

Another example is the current pathetic state of affairs with Display drivers for BSD, Linux, etc.

It is plain to see the only reason why a company would not release the drivers to old hardware (release the entire engineering spec to the public domain) it wholly owns and no longer supports, and is like selling less than 2% of thier product family per year (i.e. ATI's 9250 series etc) is because the whole patent/intellectual property system is nothing but a scam.

If you don't think ATI or Invidia purchase each others products, reverese engineer them to see how they work and or have employees that use to work at either company currently working for one or the other you are living in dream land.

In truth, the intellectual property laws don't prevent stealing but ACTIVELY ENCOURAGE IT. Even though ATI or Nvidia copy or reverse engineer their designs, they don't have to worry about being caught. Priamrily due to the fact that in order for either one to figure out if either has reveresed engineered or copied a design, they would have to reverse engineer the product in the first place which is against the law. Any employee that squeals about it too breaks the law, so it cannot be used in court.

Sheer rubbish.

This sort of circular logic and reasoning specifically built into the USA Patent system was put there for a reason. That reason is to lock up markets for decades and prevent new companies from forming.

The only way companies can grow in the USA is to purchase other companies that already have enourmous amounts of market share or by purchasing a patent, not really a product.

New companies that startup are hard to find, and it isn't because there isn't a market for a better OS.

Thats why we have crappy software, with only 1 primary vendor for an OS in the USA for example.

There is NO POSSIBLE WAY for a company in the U

Re:GPL Comments

[hazah]

Anybody have a few hundred billion laying around so I can buy off some Judges, Congressman???

You are making me wish I did. Cause I would have.

Dlink and GPL

[novus ordo]

I've been messing around with DSM-320 and Dlink does provide lots of gpl code at their ftp site. However I haven't had much time to mess around with it to see if it will work without major missing pieces. These guys have been trying to get a DSM-520 working and it seems it is a little more complicated:

Also legally who's responsible to release the sources: the OEM (DLink), the design house (Redsonic), or the company who probably customized the kernel for the SI8210 (Sigma)?

I've called D-Link before myself trying to get that code and of course they'll refer you to RedSonic who of course will refer you to SigmaDesgins.

quick update--nothing new! go figure. I had a hard time getting in touch with dlink last week--waited on hold for about 40 minutes a day for 3 days straight. Got bounced around to a few departements and finally was told they don't release 'that information'. Not really surprised I guess. I'm a little disapointed they didn't at least respond to the letter though although they had absolutely no incentive to. I'll move on to Redsonic I suppose.

Yay for bouncing hot-potatoes. As they say, where there's smoke there is fire...where the hell is FSF(not europe) on this one?

Re:Dlink and GPL

[jrumney]

Also legally who's responsible to release the sources: the OEM (DLink), the design house (Redsonic), or the company who probably customized the kernel for the SI8210 (Sigma)?

Dlink, or maybe even the retailer you bought it from, is distributing the product to you, so they are responsible for distributing the source to you. They can chase up the chain to get the source from whoever distributed the binaries to them, but they shouldn't be trying to deflect you up the chain and claiming no responsibility. Unless they were sold binary modules without being told there was GPL code in it, then they might have a case for passing the buck, but it does seem in this case they were well aware of what they were distributing.

No D-Link for me

[Anonymous Coward]

Remind me to never buy any D-Link products.

Not legally binding

[Anonymous Coward]

Court decisions from the BGH (SCOTUS-equivalent) and the BVerfG (Court for matters concerning the constitution) are legally binding. This decision is from a district court - and thus not binding.

Poor anti-GPL netkooks...

[the saltydog]

Wow - when they hear about this, those German anti-GPL netkooks are going to be pissed.

(Hi, Alex!)
(Oh, and if you actually get to read this, Alex, go fuck yourself. Sincerely, The World.)

All Wrong

[EEPROMS]

Ok the article tittle is wrong for starters.

The GPL wasnt successfully defended at all.

What transpired in this case was the judge said fine if you invalidate the GPL you still lose because you then have to abide by copright law. I cant see anything under copyright law that allows you to freely distribute the code without the permission of the author so sorry but you lose either way.

This is the catch 22 with the GPL, even if you win and make the GPL invalid you then have to deal with copyright and there is no getting around that one.

Copyright "does not allow you the freedom to distribute an authors code" without prior permission, its that simple

Re:All Wrong

[headLITE]

No, actually, the court ruling explicitly states that the GPL is a valid means of licensing software in Germany. The court could as well have said the GPL is rubbish but D-Link still violated copyright laws. They didn't. D-Link's "the GPL is not valid" approach actually prompted the court to specifically state that the GPL's "accept this license or don't distribute the product" clause is valid. Thus, the GPL was indeed defended even though the court didn't say anything about the other clauses. They don't have to. They said if you don't like the rest of the GPL, you need not accept the GPL, but then you don't have a license at all.

Seek Damages Already!

[QuantumG]

Jesus, when are people going to figure out that the money received for damages can fund open source development? They broke the license, you have a right to damages, seek them and use the money to sue more people. It's basic guerilla tactics!

(ot)Re:Where are the kernel devs?

[hazah]

You're fucking retarded. That's not a troll or flamebait, it's simply the only rational reply to your comment.

Damn... stole the words right out of my head. See, they showed his comment on the page but not yours, and I really wanted to call the guy a moron. Then I clicked on that link... sigh. Cheers.

Yay for anecdotal evidence!

[ZxCv]

Sounds like your experiences with them have been pretty bad.

I, on the other hand, have had a nearly flawless experience with a bunch of D-Link equipment, and thus recommend them to just about everyone. I've had 3 PCMCIA wireless cards, 4 or 5 PCI wireless cards, 1 usb wireless adapter, 2 nat routers, 3 wireless+nat routers, and a wireless ap. Of all that, I only ever had issue with the AP, and it was solved in about 5 minutes with a call to their support, who pointed out that their website was broken and thus telling me I had the latest firmware when I actually didn't. The new firmware worked as expected and that was that.

Overall, I'd say that just the fact that D-Link is thriving these days probably indicates that more people have experiences closer to mine than yours.

Real situation with OS licences in Germany

[DandyRandy]

That's realy funny, that something like this happens in Germany, where at a typical german University the majority of WindowsXP public installations are not properly licensed (University Department buys single licence install from their local 'Rechenzentrum' and installs OS to any computer they have or will have in the future. Unofficially the Dean of the Faculty finds no problem hetre - Windows is american, why to pay americans - this is close to official policy), and around 25% of personal laptops carry pirated Windows.

Re:Real situation with OS licences in Germany

[j_pernfuss]

No idea which univerities you visited, but all I saw so far had campus-wide volume licenses.

Reasons for not distributing the source

[k2r]

They might have reasons besides secrecyy for secrecy's sake.
Maybe they are infringing somebody's stupid Software-Patent with their changes to the source?
Or they are infringing another party's copyright.

I see no other reason.

k2r

One man votes with his wallet

[Douglas Goodall]

Since D-Link seems to be a repeat offender, I think I will cease and desist buying their products. The only product they have that I buy are their $24US gigabit network boards of the pci kind. I will search long and hard to find another vendor, or re-evaluate whether I need that bandwidth where I am currently using it. Hurray for the GPL. Another win for the good guys.

Easily fixed.

[Jesus_666]

"Durch Benutzen dieser Software erklären Sie sich bereit, auf jegliche Rechte unter dem BGB, insbesondere 305ff., rückwirkend bis zum Zeitpunkt des Öffnens der Verpackung, zu verzichten."

("Through use of this software you agree to forgo any rights you have under the BGB, especially 305ff., retroactive until the opening of the packaging.")

Re:Easily fixed.

[k98sven]

Say what now?

It seems kind of unlikely to me that you could "easily" circumvent a law that limits the use of non-negotiable contract terms through a non-negotiable contract term!

It would be rather entertaining to see them try to sell that to a judge, though.

Re:Easily fixed.

[Jesus_666]

That was the point of my post. The term amounts to making people retroactively waive [i]any[/i] rights they have under the civil law, which is, of course, utter nonsense. But still, with all the crap some companies put into their EULAs, this wouldn't be too surprising to find.

Re:Easily fixed.

[k98sven]

Ah, in that case, the point is well taken and quite true.

You can tell from different EULAs the extent of their knowledgeability.

For instance, with respect to digital signatures, the Skype EULA says: "You hereby waive any rights [..] to the extent permitted under applicable mandatory law.", showing they're aware that some laws on that subject can't be voided by a license.

However, the same EULA tries to ban reverse-engineering, despite that EU law and the DMCA both allow it for interoperability purposes. But unlike the DMCA, the European law explicitly states you can't waive that right, and any such license terms are void.

The real tragedy is demonstrated by the terrible ruling in the Blizzard v. Bnetd case: The court found you could waive the DMCA right through a EULA. Which means two things, first that the DMCA is little more than a paper tiger in that respect, and second that businesses seem to have nothing to lose and everything to gain by adding apparently unenforceable clauses.

E.g. the MSN Messenger EULA states: "You will not disassemble, decompile, or reverse engineer [..] except and only to the extent that such activity is expressly permitted by applicable law.". A court may well find that that clause does not lead you to waive the DMCA rights.

Thus: Microsoft loses out because they added a seemingly redundant reservation, and Blizzard wins by asking for more than most people would assume to be legal.

So IMHO, you can't blame businesses for writing draconian EULAs as long as the courts for make it profitable to do so. In that scenario, I'd say a lawyer not writing a draconian EULA is doing a bad job for his client. The Blizzard lawyer apparently did a better than the Microsoft one. (although you'd think otherwise)

(This of course assumes both Blizzard and MS both intend to ban reverse-engineering as far as they legally can. But I think that's a fair assumption.)

Re:Easily fixed.

[turbidostato]

"The term amounts to making people retroactively waive [i]any[/i] rights they have under the civil law, which is, of course, utter nonsense. But still, with all the crap some companies put into their EULAs, this wouldn't be too surprising to find."

I think that it is the other way around, in fact. I don't know how it comes in the USA, but under (most, if not all) EU countries' law, you cannot resign to already given rigths under civil law, specially not in the case of licenses (a kind of "contract" where one of the sides has no choice to disccuss the terms of the legal abiding agreement). Clauses under those lines would be considered void and nul. Current sofware EULAs tend to be so utterly astounding that specially if the claims from the software vendor goes against a big company with its fair share of lawyers, it won't happen that some clauses are nul but the EULA as a whole, since it would tend to be consider not a fair attempt to reach an agreement -with a few faulty points, but an unfair means for one side to gain complete legal shielding without giving anything in counterpart (you know the tipical EULA: this software won't fit any given function, damage claims will be limited to 100US$ or something equally idiotical, you will resign to your legal rights like the allowance to reverse-ingeneering for cross-compatibility...). Under those circumnstances any claim from the software vendor would be dismissed.

I really would like to see Microsoft going against say, REPSOL for EULA infringement (of course any big company won't be bound by any EULA but by their private contract with Microsoft, but that's another story).

not all that a good system

[Anonymous Coward]

"Which means, if you're right, it's actually reasonable to defend yourself, even if it costs a little."

This is not an improvement on itself, when generally applied. You're making the assumption that, because one is *right* one will benefit more from this system, which, in an ideal world, would be true.

Alas, in practise (and many studies have already indicated this), statistically, those with the best (and thus most costly) lawyers have been shown to get more legal successes, than those who didn't have them. So, in reality, it's not (or at least, not always) a matter of being right, but also a matter of being able to afford a first-class lawyer company, who knows all the tricks of the trade. In that view, a poor dude, who already has it difficult, and can't afford expensive lawyers, will be worse off (viewed statistically, this can't be denied, even though every individual case differs).

This basically means, that, as a whole, poor people are being screwed over by the legal system more then rich people. With your view on things, those people, who already can't afford much, would now have to pay the mega-paychecks of the other sides' lawyers as well, making them utterly broke? while, if the rich corporations lose, they would have to pay the rather modest wage of the cheap lawyer the poor party had? Something THEY can afford without much pain, obviously.

Unless there would be put in place some serious restrictions and socially-weaker-protecting conditions to such a system, this would certainly make things even far less fair and just then it already is. It would immensely benefit the richest parties to the detriment of the poorest. Only if you had the naive idea that it's the 'right' side that always wins, would one consider this system as universal beneficial for society as a whole.

GNAA suspected in death of Rob Levin

[Mr. S. Catman]

GNAA suspected in death of Rob Levin
GNAA suspected in death of Rob Levin

Mad Virii (GNAP) Washington, DC - In a baffling move that sent shockwaves throughout the anuses of gay niggers everywhere, federal officials investigating the death of Freenode administrator and posterboy Rob Levin have recently announced clues that seem to assign blame towards the Gay Nigger Association of America.

An announcement of his death was transmitted as a Global Notice across the Freenode network, on September 17 at 06:18 JST:
06:18 -christel(i=christel@freenode/staff/gentoo.christe l)- [Global Notice] On the 12th September Rob Levin, known to many as Freenode's lilo, was hit by a car while riding his bike. He suffered head injuries and passed away in hospital on the 16th. For more information please visit #freenode-announce

"It seems that the bike was impacted by a large pink bus in the shape of a hypodermic phallus," an inside source stated. "Levin's carcass was penetrated anally by the hood ornament, and it took a team of coroners to remove the several gallons of what could only be described as seminal fluid from the victim." EMTs on the scene say Levin's body was covered with open sores.

The GNAA reaction was astonishing. "We have stuck alot of things up Rob Levin's ass in our time, but we maintain innocence," stated GNAA president timecop, fingers crossed."Even when driving a bus up some nigger's ass was fashionable, the GNAA never took part in it."

Later on at the Rob Levin's Death after-party, GNAA member madvirii exclaimed "OH LAWD IZ DAT SUM DEAD FREENODE ADMIN?" and there was liberal lolling.

About Freenode:

Leaderless.

About GNAA:
GNAA (GAY NIGGER ASSOCIATION OF AMERICA) is the first organization which gathers GAY NIGGERS from all over America and abroad for one common goal - being GAY NIGGERS.

Are you GAY ?
Are you a NIGGER ?
Are you a GAY NIGGER ?

If you answered "Yes" to all of the above questions, then GNAA (GAY NIGGER ASSOCIATION OF AMERICA) might be exactly what you've been looking for!
Join GNAA (GAY NIGGER ASSOCIATION OF AMERICA) today, and enjoy all the benefits of being a full-time GNAA member.
GNAA (GAY NIGGER ASSOCIATION OF AMERICA) is the fastest-growing GAY NIGGER community with THOUSANDS of members all over United States of America and the World! You, too, can be a part of GNAA if you join today!

Why not? It's quick and easy - only 3 simple steps!

• First, you have to obtain a copy of GAYNIGGERS FROM OUTER SPACE THE MOVIE and watch it. You can download the movie (~130mb) using BitTorrent.
• Second, you need to succeed in posting a GNAA First Post on slashdot.org, a popular "news for trolls" website.
• Third, you need to join the official GNAA irc channel #GNAA on irc.gnaa.us, and apply for membership.

Talk to one of the ops or any of the other members in the channel to sign up today! Upon submitting your application, you will be required to submit links to your successful First Post, and you will be tested on your knowledge of GAYNIGGERS FROM OUTER SPACE.

If you are having trouble locating #GNAA, the official GAY NIGGER ASSOCIATION OF AMERICA irc channel, you might be on a wrong irc network. The correct network is NiggerNET, and you can connect to irc.gnaa.us as our official server. Follow this link if you are using an i

GNAA campaign against PHP and ZEND bears fruit

[segin]

Impi - Diplomatic Corp, South Africa

The ongoing war against PHP by the GNAA has finally produced results that are a step in the right direction. GNAA have been aggressively involved in a campaign to educate the public at large about the tremendous control that MOSSAD has over the development of PHP and the subsequent clandestine information gathering technology that has been implemented by Jewish developers.

The co-founders of Zend, the PHP Company, Zeev Suraski and Andi Gutmans are known Israeli MOSSAD agents; they were recruited by MOSSAD during their formative years at the Israel Institute of Technology.

On Friday, 28 July 2006, Jani Taskinen, aka _sniper_ resigned from the PHP development team.

<_sniper_> FYI: I don't care at all what anybody thinks about me. I'm going to be openly anti-Israel from now on. This was the last straw for me. Fuck you Jews. <_sniper_> I will also quit this project. As long as it's backed by some Israel company, I don't want to have anything to do with it. <_sniper_> Good bye.

This was a direct result of the ongoing war against Hezbollah which has been backed by the USA and primarily been driven by the information gathering technologies embedded in PHP by Zend.

Several GNAA members who were also part of the PHP development team have also resigned in solidarity with Jani Taskinen.

timecop, the glorious president of the GNAA has reacted in the wake of these events by extending an invitation of honorary lifetime GNAA membership to _sniper_, for having courage in his convictions.

GNAA official website, located at http://www.gnaa.us/ is powered by Microsoft Internet Information Services and ASP.NET, running on INTEL hardware.

About Zend

Zend is an Israeli funded body that is controlled by MOSSAD.

About PHP

Crap.

About GNAA:
GNAA (GAY NIGGER ASSOCIATION OF AMERICA) is the first organization which gathers GAY NIGGERS from all over America and abroad for one common goal - being GAY NIGGERS.

Are you GAY ?
Are you a NIGGER ?
Are you a GAY NIGGER ?

If you answered "Yes" to all of the above questions, then GNAA (GAY NIGGER ASSOCIATION OF AMERICA) might be exactly what you've been looking for!
Join GNAA (GAY NIGGER ASSOCIATION OF AMERICA) today, and enjoy all the benefits of being a full-time GNAA member.
GNAA (GAY NIGGER ASSOCIATION OF AMERICA) is the fastest-growing GAY NIGGER community with THOUSANDS of members all over United States of America and the World! You, too, can be a part of GNAA if you join today!

Why not? It's quick and easy - only 3 simple steps!

• First, you have to obtain a copy of GAYNIGGERS FROM OUTER SPACE THE MOVIE and watch it. You can download the movie (~130mb) using BitTorrent.
• Second, you need to succeed in posting a GNAA First Post on slashdot.org, a popular "news for trolls" website.
• Third, you need to join the official GNAA irc channel #GNAA on irc.gnaa.us, and apply for membership.

Talk to one of the ops or any of the other members in the channel to sign up today! Upon submitting your application, you will be required to submit links to your successful First Post, and you will be tested on your knowledge of GAYNIGGERS FROM OUTER SPACE.

If you ar