German Court Convicts Skype For Breaching GPL

terber writes "A German court has once again upheld the GPLv2 and convicted Skype (based in Luxembourg) of violating the GPL by selling the Linux-based VoIP phone 'SMCWSKP 100' without proper source code access. (Original is in German, link is a Google translation.) Skype later added a flyer to the phones' packaging giving a URL where the sources could be obtained; but the court found this insufficient and in breach of GPL section 3. The plaintiff was once again Netfilter developer Harald Welte, who runs gpl-violations.org. The decision is available in German at www.ifross.de (Google translation here)."

Comments

Correct terminology

[Akaihiryuu]

Noone would be convicted of "breaching the GPL". The GPL is not an EULA. If you violate the terms of the GPL, you are (re)distributing without a license permitting you to do so (since the GPL, which you violated, is the only thing that gives you permission to do so), which is a copyright violation, not a GPL violation. I wish articles would get the specifics right.

Re:Correct terminology

[timster]

This is far from pedantry. Using terms suggesting that someone would be convicted or held liable for a "GPL violation" suggests that a court must uphold the GPL as valid for such a lawsuit to be successful. This makes people believe (erroneously) that the GPL is a questionable document that needs to be tested in court.

On the contrary, a standard legal action against someone not in compliance with the terms of the GPL would be a simple copyright infringement case; the onus is on the defendant to show that they had a valid license (and met its terms).

Re:Correct terminology

[mrchaotica]

Hey, we're having a legal discussion here -- pedantry is necessary!

Re:Correct terminology

[AKAImBatman]

Using terms suggesting that someone would be convicted or held liable for a "GPL violation" suggests that a court must uphold the GPL as valid for such a lawsuit to be successful.

The court must "test" the GPL if the defendant claims that he accepted the terms. At that point the judge will attempt to decide whether the defendant did indeed keep up his half of the bargain, potentially restricting the power of the GPL agreement where local laws say otherwise.

This makes people believe (erroneously) that the GPL is a questionable document that needs to be tested in court.

The GPL is a fairly air-tight design, but there's nothing erroneous about its need for court testing. A judge can (and will!) strike various parts of the agreement if he finds them to be in conflict with either the law or the intent of the agreement. As a result, it's difficult to legally "prove" that a given type of agreement will hold up in court unless either that same agreement or a similar agreement is tested. The GPL has had sufficient legal testing to show that it will hold up in court.

If I'm not mistaken, your confusion stems from section 5 of the GPL, which explicitly provides for the fact that no proof of an agreement takes place. According to the GPL, you don't have to accept it to use the software. It falls back on standard copyright law in that case. Thus when an infringer is identified, he faces a double-edged sword. Does he claim that he did not accept the GPL, in which case he's on the hook for copyright infringement? Or does he claim that he did indeed accept the terms of the GPL, in which case he's on the hook for (I'll phrase this carefully just to annoy the "contract vs. license" folks out there :P) "breach of the terms and conditions of the contract"?

The GPL is an interesting experiment in using a legal loophole as the foundation for a distribution agreement. This case provides further evidence that the concept works as well in practice as it does in legal theory.

Misleading or incomplete summary.

[argent]

The actual problem is that they did not include the text of the GPL with the phone. The summary here in Slashdot didn't mention that, and had me wondering what the problem with the provided URL was.

Re:Hooray for Harald!

[Kjella]

At some point there will be a case where an evildoer will use the defense that since the copyright holder didn't pursue company X 5 years ago they should be prevented from trying to do it now. And poof! The copyright will vanish or be declared null and void and with it the GPL distribution license that goes along with it.

Wow, did you drink some SCO FUD? Copyrights are never nullified because of lack of enforcement, and I dare you to find an example. Not enforcing them may limit your ability to collect damages, but at any time you can send an injunction to make them stop.

What's needed is enforcement of copyright law:
506. Criminal offenses
(a) Criminal Infringement.
(1) In general. Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed
(A) for purposes of commercial advantage or private financial gain;

2319. Criminal infringement of a copyright
(a) Any person who violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b), (c), and (d) and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1)(A) of title 17
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.

If you're using a substantial amount of GPL'd code beyond the rouge developer taking code, that should be enough to know you're willfully infringing. Being a for-profit company should be enough to prove "for commercial advantage". At which point they should be strung up on criminal charges and sent to jail like with SOX regulations. That's how it should be, note there's no minimum amount to make (3) go into effect and send them away for a year, even at a $0 "retail value" as long as you can prove *they* earned money on it.