GPL vs. Skype Back In Court

mollyhackit writes "Hackaday reports that the GPL vs Skype case is going back to court today. This as an appeal to the court's decision Slashdot reported last July. The original case was brought against Skype for the Linux based SMC Skype WiFi phone. The court upheld the GPLv2 and decided that Skype had not gone far enough in meeting section 3 which details how to provide the original source. This time around Skype is apparently trying to argue that the GPL violates anti-trust regulations."

Comments

Violates Anti-Trust??

[NoSCO]

Perhaps if they code something off their own back then rather than leech off the work of others, there would be no problem. Honestly, the nerve!

Re:Violates Anti-Trust??

[sohmc]

How exactly is the GPL violating Anti-Trust laws? Doesn't the GPL do the exact *opposite*? The whole point of open source is to allow others to have access to the same code, thereby leveling the playing field...I guess in a way.

Re:Violates Anti-Trust??

[mea37]

Well, that's the core take-away from this story. We don't yet know how the case will play out, and I certainly don't claim to understand their theory on the anti-trust angle well enough to speculate. But either way, this speaks to the ethical stance of a company.

A company that takes what it needs/wants, knowing what is expected in return; doesn't give what is expected; is caught and convicted; and then challenges the validity of the agreement under which they were allowed to take what they want, with the implied conclusion that they should be allowed to take what they want anyway while giving nothing back.

Bunch of children.

Re:Violates Anti-Trust??

[fishbowl]

>How exactly is the GPL violating Anti-Trust laws?

It is not.

>Doesn't the GPL do the exact *opposite*?

No. The "opposite" of violating the law is "compliance" and the GPL cannot "comply" with Anti-Trust laws.
A creator of content has certain rights, that are reserved by default, purely on the basis of him having created that work. There are ways to assert those rights, such as giving notice (e.g., "registrations"), but these do not confer any "improved rights", they merely help with evidence when those rights need to be defended.

But the GPL is a license, a grant of certain authority that the licensee would not have without the license.
If you wanted to accused the grantor of a GPL-style license of breaking some law, you would first need to show that the grantor did not have the right to use the license, which in the case of the GPL, would mean somehow depriving the grantor of his rights that he has under copyright law. What you suggest doing would be unprecedented in the US.

Re:Violates Anti-Trust??

[joostje]

EULA's impose extra restrictions on top of what copyright gives (cannot reverse engenier, etc); while the GPL gives extra rights over what copyright gives (can run, copy, etc as often as you want). If you claim not to have read the GPL license, you would have been bound to normal copy right law, and not have been allowed to distribute the program at all.

Re:Violates Anti-Trust??

[99BottlesOfBeerInMyF]

Well... isn't this the old EULA issue all over again? Users actually click the "I accept the EULA I have JUST read" without actually accepting what it says and... to be honest, not even reading it priorly.

No. EULAs restrict what you can do with a copy of software. The GPL is a license for making and distributing copies of software, not using them. Applying this to another medium, imagine you bought a DVD, and then discovered upon running it that it required you to agree not to watch it with the sound turned off. The GPL, on the other hand, would be like buying a DVD and then discovering that it came with a license agreement that would grant you permission from the copyright holder to make copies of the DVD and resell them, if you mailed 10% of the profit to the address listed. In the case of an EULA it is trying to place restrictions on you that are not part of law. In the case of the GPL, it is offering to allow you to take an action that would normally be against the law, provided you agree to the conditions.

EULAs are very questionable from a legal standpoint. The GPL is just a contract for distributing a copyrighted work, just like any other such agreement signed between a record company and Apple or a photographer and a magazine. It is just a very inexpensive agreement and as such, some people mistake it for not being an agreement at all and try to ignore their half of it.

s for the antitrust argument, I have a good handle on antitrust law and it makes absolutely no sense to me. I'll be quite curious to see what they are claiming for a market definition and abusive action. Personally, I think this is just trying to draw out the litigation in the hopes of buying their way out of it.

Simple Solution

[Nom du Keyboard]

This time around Skype is apparently trying to argue that the GPL violates anti-trust regulations.

If you don't like GPL terms, don't use GPL software. How much simpler can it be?

Re:Simple Solution

[moderatorrater]

Don't you see? The source code is right there in the open! It's free! Why are you guys getting so worked up about something that you don't care about enough to protect? The nerve of you hippies; go smoke your pot while us real people turn your code into something useful, something that will revolutionize the world and move us closer to utopia, things like recording television and making phone calls on the internet.

Re:Simple Solution

[neokushan]

Try telling that to an overpaid manager that's thinking "hmm, we could spend maybe a few thousand hiring software developers to code up this thing we need, or we could save all that money by stealing this free thing. Worst case scenario is we'll need a couple of lawyers to get us out of that pesky GPL thing"

Re:Simple Solution

[peragrin]

Hmm you could always go the apple route and just take BSD code that has a license that makes the software free to abuse as much as you like.

It doesn't take a brain to see the differences. If you wanted it closed use a close source license to begin with.

Re:Simple Solution

[Bryansix]

But there is a lot of profit in saving money. That's the point. In Business you make money by doing two things... raking in revenue and controlling costs. It would have been a lot less expensive for Skype to have just played by the rules.

Re:Simple Solution

[L4t3r4lu5]

There's plenty of profit in "public good" if it means the bottom line isn't crippled by solicitor's fees.

Anti-trust theory already tried, and failed

[Bruce Perens]

The anti-trust theory was already tried in Wallace vs. International Business Machines et al.. OK, Wallace represented himself, and wasn't a lawyer. But it's not going to fly. Why is eBay asleep at the switch while some rogue laywer at Skype pulls this? They have nothing to lose from releasing the kernel, and both reputation and money to lose while they balk.

Bruce

Re:Anti-trust theory already tried, and failed

[Ares]

I wouldn't say that "absolutely no value" is true, but Germany is under "Civil Law" rules, whereas most of the anglophone world is under "Common Law" rules. Under Common Law, like the US, UK, most of the Commonwealth, etc., case law plays a very important role in future cases, frequently much more so than the actual written law. With Civil Law, which is derived from Roman law, the written law has much more influence from the written law.

Wikipedia has a really good writeup on the differences.

If it wasn't so dumb...

[Bruce Perens]

shooting down the GPL - you can bet there is more behind that push than just "somebody" at Skype

Well, if they tried to do it in a smart way. This is about the most stooooopid way possible. First, they use a legal theory that only a fool would pursue and that is, indeed, known for having been pursued foolishly only to be dismissed with a very clear finding by the judge in a U.S. court. Then, they pursue this case when complying with the terms of the GPL would cost them nothing, which is the mark of a lawyer who isn't considering his client's best interest. There is nothing special about Skype that belongs in the Linux kernel. Their proprietary software is safe in user-mode, where this case won't touch it. The only things that would need releasing is the customization for that particular embedded phone device, which is not terribly different from the wealth of customization for similar devices already in the public.

In other words, complying with the terms of the GPL would cost Skype less than pursuing this case.

They're stupid, or crazy. If eBay can't rein them in, what about eBay stockholders?

Bruce

The problem for Skype

[gr8_phk]

The GPL doesn't violate anything, but even if they did manage to get the License declared illegal in some way... They would still be using someone else's copyrighted code without a license. GPL is the only thing that grants you the right to distribute copies, if you throw it out then you've got nothing to stand on. After all the other cases, I still find it amazing that people don't understand this.

Re:Violates Anti-Trust? It's about the money.

[Jaywalk]

How exactly is the GPL violating Anti-Trust laws? Doesn't the GPL do the exact *opposite*? The whole point of open source is to allow others to have access to the same code, thereby leveling the playing field

SCO tried this same stunt, and we know how well it worked out for them. It all turns on the parts of the anti-trust laws that targets predatory pricing. With predatory pricing, your company sells your product at a loss in order to bankrupt your competitor, then mark your prices up to a level you couldn't sustain if there was any competition. The argument goes that Linux, with a price of zero, must be anticompetitve since it is impossible to underprice them.

There's a whole raft of problems with this argument. Here's my short list. Feel free to add your own.

• * The GPL isn't a monopoly. There's plenty of competition for software out there, including a convicted monopolist.
• * GPL code cannot be priced up if a monopoly is ever achieved. The terms of the GPL prohibit charging for GPL code ever, so real predatory pricing is precluded.
• * The antitrust laws have been gutted by a series of court cases. One of the "new" standards is harm to the consumer, an almost impossible to prove issue. (So, how do you know Netscape wouldn't have gone bankrupt anyway?) While Microsoft has benefited from this standard, it also will require Skype to prove that giving away software for free harms the consumer.

That's my short list. Like I said, please feel free to add your own.

Seriously, though: fuck Skype

[Sloppy]

I know their service appears to be superior to traditional POTS and mainstream VoIP offerings, but they still suck. You're locked into a proprietary protocol that doesn't interact with anyone else's apps, and the crypto is "fake" (in the sense that Skype is always the trusted introducer for key exchange, and is therefore subject to coercion by, say, governments).

Kill this app. The "free" calling seems neat, but this isn't what we really need. Like the iPhone, it's a good demo of the future, but everyone loses if the actual product is the future.