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??

[GooberToo]

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.

Yes, it is exactly the as you say. In fact, the power of the GPL is that its strength stems from copyright law. If the GPL is deemed in violation of anti-trust, it means copyright law is in violation of anti-trust. Needless to say, it is not very likely they have a sound argument here.

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.

Re:Violates Anti-Trust??

[DragonWriter]

How exactly is the GPL violating Anti-Trust laws?

It would probably be easier to have a sensible discussion of that if anywhere in TFA or even in the post to which TFA linked as its source there was any indication of the particular legal argument Skype was making.

Of course, even if we had that, the odds of a sensible discussion of German anti-trust law on Slashdot when the GPL is involved would be low.

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

No, the GPL does not do the opposite of violating anti-trust law, which would be enforcing anti-trust law.

The GPL in some ways lowers certain barriers to entry in markets, which would seem to broadly align with the policy goals notionally served by anti-trust laws. But they also impose other restrictions; whether those conflict with laws governing restraint of trade in any particular jurisdictions would be the kind of question that would require knowing the applicable laws in the jurisdiction.

Re:Violates Anti-Trust??

[michrech]

With GPL, a single product can monopolize the market. The community (or, more exactly, the largest organized group within community, e.g. a company like RedHat) will prevent smaller companies trying to "reinvent the wheel" with alternative (perhaps closed-source) products from joining the market. You don't seem to understand, well, anything about the issue. RedHat is a service company. Yes, they also happen to employ some people that happen to write code for GPL projects. Any code they create and distribute must be given back to the project.

On that, if a particular GPL product (we'll use GCC from your example below) were to be so widely used that it was the only product, well, that says something about GCC, now doesn't it? Is anything or anyone stopping a person or group of persons from creating a competitor? No. If they did so, and it was better (in whatever way you wish to define "better"), people will switch to it. If it didn't offer anything over the existing "standard" product (in our case, GCC), then no one will use it. It's not GPL's fault, and to argue that it is is just insane.

If the whole world turns GPL, it will be the same collective labour we had in USSR (I'm Russian) when no one cares about the things being done and everyone "owns" everything (in theory), but only ones having real power (aforementioned Red Hat) will shape the development. How easy is it to create a competition to, say, gcc? This argument falls apart specifically because, as I mentioned before, RedHat isn't in control of "GPL". It might be creating some code under GPL, but it doesn't control it. You seem to be quite confused, or, something else... GPL is a way to stagnation. Balmer?! Is that YOU? Now your post makes SO MUCH more sense!

Re:Violates Anti-Trust??

[Sloppy]

Definitely not. Microsoft, Blizzard, etc assert that you agreed to the EULA, regardless of whether you did or not. GPL producers never make any such claim. If there ever appears to be a conflict between the copyright holder and the user, then it's an actual question of whether or not the license was agreed to, and the user is the one who gets to make up that answer to that question! The user can say "Yes, I did agree to the license you offered," and then the terms of that license are how you judge whether the usage is allowed or not. But the user can also say, "No, I don't agree to it," and the copyright holder accepts that answer. If the user says No, then copyright law (instead of the license terms) says what acts are allowed.

Don't you see how that's a huge difference?

Re:Violates Anti-Trust??

[Archonoid]

...or equivalent EU/German associations, I should say.

Re:Violates Anti-Trust??

[fishbowl]

>I think by opposite he means GPL is the opposite of a monopoly.

But the GPL is an expression of rights that the grantor has under copyright law,
and among those rights, is in fact, a limited monopoly on distribution.

Re:Violates Anti-Trust??

[oliderid]

GPL can create a mega-corporation the same way as USSR created a mega-corporation out of itself (although it was supposed to be people's property).

Ahhh...Following the book : History for geeks
You couldn't fork communism in USSR. They didn't have any upgrade after the 1.917 version...The cosmetic changes of the 1.922 aren't worth to remember and they didn't last anyway. The massive refactoring of Stalin didn't help either. Khrushchev tried extreme programming with the cuba crisis and some clever UI interface codename sputnik...The marketing department (called politburo) ruined all his efforts few years after. In the end Gorbatchev had to sold out the assets.
As you see this is totally different from GPL. You can fork application since the beginning of GPL. See Emacs vs Xmacs.
(I love Slashdot probably the only place on earth where GPL can be seriously compared with communism.)

I fought the license....

[jeiler]

...and the license won!

Re:I fought the license....

[sm62704]

I usually prefer the Dead Kennedys version of that song to The Crickets version, but not in this case. YAY GPL!

Drinkin' beer in the hot sun, I fought the law and I won
I needed sex and I got mine, I fought the law and I won
The law don't mean shit if you've got the right friends
That's how the country's run
Twinkies are the best friend I've ever had
I fought the law And I won
I blew George & Harvey's brains out with my six-gun
I fought the law and I won
Gonna write my book and make a million
I fought the law and I won
I'm the new folk hero of the Ku Klux Klan
My cop friends think that's fine
You can get away with murder if you've got a badge
I fought the law And I won I am the law So I won

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

[Bryansix]

Or you could use that free thing, add value to it and post the source code like you are supposed to. Then you save money and help out the public good all at the same time. That is how GPL is supposed to work.

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

[HardCase]

There has to be a car analogy somewhere around here...

Re:Simple Solution

[rs79]

Caveat: IANAL.

But my exes dad was, he was the head of the anti truct division of the justice department in Los Angeles for 15 years.

He had two seminal cases: 1) He beat Howard Hughes in court and 2) he was the guy behind US. Vs. Brown Shoe which I understand was a landmark case and is required reqading for anti trust lawyers today. Never mind Reagan gutted most anti-trust law.

To run afoul of the Sherman anti trust act you must control 2% of the total means of production of something. This is clearly not the case.

This is off the top of my head. Queue NewYorkCountryLawyer dude to correct me (as usual).

Re:Simple Solution

[emag]

Then you save money and help out the public good all at the same time. There's very little profit in "public good".

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.

Re:Simple Solution

[McDutchie]

There's very little profit in "public good".

True. "Public good" is not profit, but the price you pay for incorporating someone else's GPLed software into your product. (You know, the "free as in freedom, not price" thing.) If Skype is not willing to pay that price, they should not have used the software.

Re:Simple Solution

[Redlum_Jak2]

Even simpler. use the free thing when you have no revenue and no one cares. When the product becomes successful and someone notices that you're doing something illegal, then delay long enough to re-write it. When Skype is no longer using Linux, then they won't have to divulge their code.

Re:Simple Solution

[Jah-Wren Ryel]

There's plenty of profit in "public good" if it means the bottom line isn't crippled by solicitor's fees. I think that someone at Skype has realized that they are in a commodity market. Thus there is no profit in the "public good" for Skype if that public good means giving any advantage at all to their competitors. They probably think the price of the lawyers is totally worth the benefit of denying anyone else in the VOIP market access to the software changes they have made.

Unless they are selling the handsets at below cost, I can't see that reasoning really being true. But I'm not one of the skype managers who have decided that lawyers are worth the price.

Re:Simple Solution

[Bruce Perens]

Or, you could put all that GPL code into a library and link it in to your app so you avoid the problem of having to release all of your source.

Linking, even dynamic linking, doesn't get you off the hook if you distribute all of the pieces together and they don't work separately. It doesn't necessarily get you off the hook in other cases either (avoiding a long legal discussion).

However, the Skype code, at least the important part of it, isn't in the Linux kernel. It's a user-mode application and the GPL of the kernel doesn't apply to it.

Bruce

Re:Simple Solution

[Bruce Perens]

Are there any proprietary Linux apps that don't use ANY dynamic libraries that are under the GPL?

All of the important libraries for applications to use, like GLIBC, are under LGPL instead of GPL. You'd have to be sloppy to get a GPL library in a proprietary application.

However, the Skype code, at least the important part of it, isn't in the Linux kernel. It's a user-mode application and the GPL of the kernel doesn't apply to it.

Not sure I understand this portion of your comment. You don't have to be kernel code to dynamically link to a library...

Harald Welte holds copyright to part of the kernel. It's less likely that Skype used Harald's GPL code in their application, which wouldn't be part of the kernel.

Legal issues aside, it's just a bad position for the GPL to be in.

Actually, the Linux system is pretty clean for people who want to make proprietary works, because the facilities they would need to directly incorporate aren't under GPL. However, there are pieces which are under GPL that shouldn't be married to your propiretary code, and wouldn't be unless you just didn't know what you were doing.

Re:Simple Solution

[EllisDees]

>Problem solved.

If they want to legally distribute it, they cannot do so unless they offer the source for prop.dll. If you can't offer the source, you can't redistribute. It's that simple.

Re:Simple Solution

[mrchaotica]

Why are you guys getting so worked up about something that you don't care about enough to protect?

The funny thing is, they did care enough about it to protect it -- hence the first court case that they already won. Too bad Skype's apparently too stupid to figure that out...

Re:Simple Solution

[Daengbo]

The canon source disagrees with you:
per http://www.gnu.org/licenses/gpl-faq.html

Does prelinking a GPLed binary to various libraries on the system, to optimize its performance, count as modification?

Why not quote something pertinent?

The GNU General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Lesser General Public License instead of this License. But first, please read .

I wonder...

[jskline]

Didn't Microsoft try this tactic some time back?? I'm almost sure of it but can't remember what and when. Seem to me they were trying to get the whole premise of "free software" banned on a legal level. Anyone??

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

[R2.0]

"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."

For the same reason they are suing Craigslist for stock dilution. I'm not saying I know what it is, but they are both lawsuits with shaky legal ground and huge damages to reputation, so I figured the same genius is behind both.

Re:Anti-trust theory already tried, and failed

[no-body]

A - didn't Ebaybuy Skype at one point?
B - shooting down the GPL - you can bet there is more behind that push than just "somebody" at Skype

great to speculate....

Re:Anti-trust theory already tried, and failed

[Anonymous Coward]

If ever there ever was a time to apply section 4 of the GPL surely appealing like this after losing the initial decision is it.

Re:Anti-trust theory already tried, and failed

[HardCase]

I think, Bruce, that the difference in this case is that it's being tried in Germany, not the US. I suspect that Germany puts as much value on US precedence as the US puts in Germany's.

Still, it does appear to be a stretch.

Re:Anti-trust theory already tried, and failed

[peragrin]

Actually in germany it's worse. the GPL has not only been upheld it was upheld against SCO's random claims years before a US judge even opened their mouths on the subject.

Not only will this not fly it is going to get flung back at those lawyers. most likely painfully.

Re:Anti-trust theory already tried, and failed

[Hozza]

This case is being tried in Germany, so a different set of anti-trust laws apply than in the IBM case. The original case was brought by people involved in the gpl-violations.org project, who have a good track record of ensuring companies follow the principle of the GPL for products released in Germany. (IIRC, IANAL in Germany anyone can bring a copyright case to court, it doesn't have to be the actual owner of the copyright)

Re:Anti-trust theory already tried, and failed

[c0p0n]

GPL vs Skype is being held in Munich, not in the US. And the GPL has been successfully tested at least once in Germany.

Re:Anti-trust theory already tried, and failed

[Toonol]

The eBay lawsuit against Craigslist isn't shaky at all; from everything I've seen, including their own admissions, Craigslist illegally diluted eBay's share in the company. I like Craigslist better than eBay, but I think they'll lose this one.

The Skype lawsuit seems pretty groundless, though. It's probably some lawyer feeling that they need to exhaust every legal option, even the craziest ones, before admitting a loss.

Re:Anti-trust theory already tried, and failed

[Richard_at_work]

B - shooting down the GPL - you can bet there is more behind that push than just "somebody" at Skype great to speculate.... I'm pretty sure this conspiracy theory will soon rank right up there alongside aliens at Area 51, the JFK shooting, the thousand mile carburetor and other notorious theories.

If Microsoft wanted to legally challenge the GPL, they could easily set up a dummy corporation with huge amounts of money whose sole employees are top notch lawyers and their only job is to build a case and fight it. They wouldn't be doing it piecemeal through half arsed efforts through companies that hold no fealty to them.

Re:Anti-trust theory already tried, and failed

[Alphager]

(IIRC, IANAL in Germany anyone can bring a copyright case to court, it doesn't have to be the actual owner of the copyright) Nope, false.
Only the copyright-owner is allowed to file a case. However, Harald Welte (author of things like IPTABLES) is german and head of gpl-violations.org.

Re:Anti-trust theory already tried, and failed

[R2.0]

"The eBay lawsuit against Craigslist isn't shaky at all; from everything I've seen, including their own admissions, Craigslist illegally diluted eBay's share in the company. I like Craigslist better than eBay, but I think they'll lose this one."

Got any links? Not being a wiseass - I'm interested in the case but haven't seen a whole lot of substantial information.

Re:Anti-trust theory already tried, and failed

[kripkenstein]

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

Just a random theory: Perhaps they modified the kernel in some way, for example, adding device drivers for their particular hardware, or something else. Which means that if they supply the source code, they need to supply their own kernel-residing code as well, and not just the vanilla kernel.

Re:Anti-trust theory already tried, and failed

[penix1]

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.

It depends on how much stock a Munich court puts in US legal decisions. The Wallace case was a US case and according to TFA this one is in Munich. I know the US courts don't put that much weight in European decisions.

Re:Anti-trust theory already tried, and failed

[Bruce Perens]

Perhaps they modified the kernel in some way, for example, adding device drivers for their particular hardware, or something else. Which means that if they supply the source code, they need to supply their own kernel-residing code as well, and not just the vanilla kernel.

Now, figure out how their proprietary value is in that kernel code. If it's just driver code, rather than the skype application, the user interface, etc., it does not represent some big trade secret or a large amount of proprietary value to the company.

Bruce

Re:Anti-trust theory already tried, and failed

[Carewolf]

Actually SCO was not only laughed out of german court, they were asked to shut up or be fined for libel, because their statements was so absurd the court could only find them deliberately malicious.

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.

Re:Anti-trust theory already tried, and failed

[MRiGnS]

The only precedence that matters in Germany is if the Federal Constitutional Court of Germany declares something unconstitutional, but this won't matter in the GPL vs. Skype case. Besides this every court decision isn't and shouldn't be affected by other courts' decisions directly. This is law and this is how it is in Germany.

Re:Anti-trust theory already tried, and failed

[Chosen Reject]

These three links should get you started:

eBay Sues Craigslist, As Craig And Jim Dilute eBay's Share
Details Come Out On eBay/Craigslist Fight
Craigslist Responds To eBay: I Know You Are, But What Am I?

Re:Anti-trust theory already tried, and failed

[kripkenstein]

Oh, I agree with you, I highly doubt that even if they did modify the kernel, that there is any significant reason not to release the source. Skype itself is in userspace, presumably. But, perhaps having to release source of any kind is too frightening for them (they wouldn't be the first company with that irrational fear).

Shooting itself in the foot

[Dancindan84]

IANAL, but it seems like their's only two coices 1) The GPL is valid and they need to comply 2) The GPL is invalid and they arein violation of copyright. Aren't they shooting themselves in the foot arguing that it's invalid?

Re:Shooting itself in the foot

[91degrees]

Option 3 - the clause that requires them to release code is invalid/only applies to the unmodified version of the code. Option 4 - Chewbacca is a Wookie and therefore the copyright belongs to Skype. Both of these are unlikely but there's not a dichotomy here.

Re:Shooting itself in the foot

[trifish]

the judge ruled that violating the license didn't suddenly make it copyright infringement, merely contract violation.

Yes, but the Artistic License does not have a specific section that GPL does. The section states that if you don't comply with the terms of the license, your rights under the license are terminated. Then it becomes copyright infringement (although the infringement might be proven incidental later on).

In short, there's a crucial difference between those licenses, so you can't compare their cases.

GPL code already available?

[Ford Prefect]

I've got a Belkin Skype phone, which judging by pictures and reviews is nigh-on identical to the SMC model - and while looking for updated, marginally less buggy firmware a while ago, I noticed that Belkin had 'GPL Downloads' available for their own product.

No idea what's included (there are two versions of a ~100MB .tgz), but there's definitely something.

Now to get the bloody thing to talk WPA to my (also Linux-based) router thingy...

Maybe

[jav1231]

Maybe it's time I shitcanned my Skype account.

Re:Dumb!

[cfulmer]

Antitrust regulations govern interactions and arrangements among companies. The GPL can be one of those. Cross-licensing agreements, effectively what the GPL is, have been held to violate antitrust law when they're used to keep competitors out of a market.

Consider a company that manages to create a de facto standard based on GPL software and then use the GPL to force competitors to release changes to their own software. The original company doesn't have to do this (since, as the author, it doesn't have to release its own changes). As a result, the original company has a competitive advantage over its competitors.

I'm not asserting that this applies here. But, there are situations where it might.

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

Re:If it wasn't so dumb...

[Chris Burke]

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.

An alternative explanation, which is fresh in my mind from the recent Reiser judgment, is a client who refuses to listen to the lawyer's advice as to what is in their best interest. At the end of the day, the client is the one who is in charge. In particular a corporate lawyer is going to take the legal strategy they are told to take.

Re:If it wasn't so dumb...

[Bruce Perens]

Even in Germany, making software available for absolutely everybody to use, redistribute, and modify, under the same terms for everybody, does not create a cartel. I don't see how a German judge is going to find any differently from the U.S. one.

Even if assuming your description is correct and Skype would forego nothing of value by doing this, what course they pursue isn't a sign of that, since lawyers ultimately (if they are doing their job) pursue the course their client decides on, within certain ethical boundaries, even if it is not what the lawyer would advise.

So, you're saying the lawyer's not an idiot, it's management that are idiots.

Bruce

Antitrust?

[Millennium]

OK, forgive me if I'm wrong here, but I thought the whole purpose of antitrust legislation was to crack down on things that discourage competition.

What in the GPL discourages competition? Nothing. You can make your own competing programs all you want. You may not be able to use GPL'd code without also releasing your source, but this is irrelevant: no one complains when Coke doesn't let Pepsi use the Coke recipes.

Even if that were a legitimate complaint, however, it would still be irrelevant. There is plenty of competition, even among GPL'd software. Consider the myriad Linux distributions, to give an example of entire businesses that compete with one another despite using GPL'd products. If Skype wants to compete with Linux using some kind of "Skynux," they too are free to do so. All they have to do is comply with the license.

Re:Antitrust?

[rkanodia]

Welcome to the new capitalism. What's mine is mine. What's yours is mine. If you attempt to stop me from taking back the things of mine, which you have had the sheer gall to put in your own possession after doing nothing but think them up with your own mind and create them with your own effort, I'll sue your ass.

Re:Antitrust?

[Millennium]

Forcing others to release their source can restrict competition, for example if the other source contains code under licenses that don't allow redistribution.

Then don't use the GPL'd code. Again, going back to the Pepsi vs. Coke example, they use different recipes and compete quite nicely. Nothing is stopping Skype from doing the same.

Re:Dumb!

[igb]

The original company doesn't have to do this (since, as the author, it doesn't have to release its own changes).

They do if they distribute the binaries. If they're not distributing the binaries, it's hard to see how they can be keeping other people out of the market.

ian

Re:Dumb!

[Ares]

Igb, I'm assuming that you're talking about the sources with this. As long as they're the sole copyright holder, they don't have to release the source for those changes, as they aren't a licensee of their own software. If I as the author of some GPL'ed software choose to release a binary-only version of that software under some other license with a feature not encompassed in the GPL release, I'm free to do so. I certainly won't get much standing in the community for it, but I am free to do it. MySQL had plans to do this before Sun reversed that path.

What this case is really about

[Ares]

IMO, this case from the Skype point of view, is more about protecting the hardware from what one might call "rogue" firmware developers. Compared to SIP based hardware, Skype-only equipment is very cheap. If a new firmware image could be built for the phone, it would be incredibly easy to use the phones with Asterisk rather than the intended Skype, simply by replacing the phone application with something that speaks SIP, since the hardware access pieces of the software would fall under the GPL, being part of the OS.

Re:Dumb!

[shentino]

The GPL is very much a permissive and mandative license, not a prohibitive one.

It absolutely will NOT stifle competition, because anything you release can only help other companies if they decide to use it.

Which means...a restraint of trade can ONLY happen with the cooperation of the victim.

"You gotta give out the source code" does NOT mean "you can't use this".

The only case where the GPL "encumbers" anything is if there's a patent involved, in which case the encumberance is both legal AND preexisting anyway.

In principle, this, is complete bullshit.

In practice, I fear some judge might not see it that way, especially in this current plutocracy.

SIP is the *open* and *free* alternative

[gnuman99]

You don't know the alternative and call yourself a geek? Or, maybe an AC is no a geek!

The alternative is to use SIP phones. And then if you don't like one provider, you get another. For example,

    http://les.net/

is one provider I've had experience with. But you can get lots more if you want,
    http://www.sipcenter.com/sip.nsf/html/Service+Providers

With SIP you can use ANY provider and not waste money on substandard service. Heck, with SIP *you* can be your own provider with Asterisk PBX software.

There is probably more real phones available for SIP than the proprietary protocols like Skype,

http://www.grandstream.com/products.html

Very good phones from my own experience. Skype has been an obsolete VoIP solution for years now. Anyone seriously looking for a flexible VoIP solution, will only look at SIP.

GPL section 9 throws this case out.

[IGnatius T Foobar]

9. Acceptance Not Required for Having Copies.

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.


In the GPLv2, the language was simpler: "You are not required to accept this license, since you have not signed it. However, nothing else grants you permission..." It's completely clear. You accept the terms of the GPL as written, or you don't use the code. Period.

Re:Almost no usefulness to doing so...

[JetScootr]

You write a big app, release it GPL and sell products using it. OK, what happens next? You make changes, release under a diff license. Still OK, it's all your code.
You get the community's version of your app, with community updates. You release under diff license without source - hold on there, buddy. You're in violation of the GPL of the community's updates to your code.
You don't own that other code. If you want to duplicate their efforts with your own code that parallels community features, fine, burn yer money. You wanna benefit from other's GPL code added to yours - then comply with the license they used to release their code.

Re:Mod parent up

[belroth]

Why? Why would the copyright holder(s) be deprived of copyright?

Re:even if Skype wins this one...

[RKThoadan]

This is a common myth and it's false. If the GPL was invalidated all the code would be owned by it's authors and thier would be no legal way for anyone to use the code without the authors permission. The only time something becomes public domain is after a very long time or if the Author intentionally and legally releases it.

appeal withdrawn by skype

[wes33]

according to this site (in German) the appeal has been withdrawn and skype has retreated with its tail between its legs.

http://www.linux-magazin.de/news/

It seems - as usual - lawyers think they can beat down the "amateur made" gpl ... until they take a few minutes to understand it.

Yeah...not!

[silanea]

Where does this nonsense come from, I wonder? If you put something under the GPL you still retain your ownership of it. All you do is you grant others certain rights on this something. If the GPL is ruled invalid, the somthing's legal situation is just as if the GPL had never existed: It is covered by conventional copyright law. Which means Skype were f*cked.

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:even if Skype wins this one...

[Bruce Perens]

No. If, hypothetically, the GPL became invalidated for some reason, all GPL code would revert to the public domain.

That's not how it works.

Both Germany and the U.S. have ratified the Bern Copyright Convention (of sometime in the seventies), which made the default all rights reserved if there is no license, not public domain.

If a GPL term were found to be unlawful, it would be severed from the rest of the license, and the rest of the license would stand.

Bruce

Re:Dumb!

[Kjella]

Consider a company that manages to create a de facto standard based on GPL software and then use the GPL to force competitors to release changes to their own software. The original company doesn't have to do this (since, as the author, it doesn't have to release its own changes). As a result, the original company has a competitive advantage over its competitors. So considered. If internal, neither company would be required to disclose source. If distributed, the original company couldn't incorporate any of those GPL changes in their own product without distributing it under the GPL themselves. Also noone can be prevented from having a license, assuming they got it legally. I assume the regular use is for all members of a cartel to only cross-license between themseelves and slam any outside competition. I guess it's not impossible to use the GPL that way but it sounds very far-fetched.

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.

Re:Dumb!

[profplump]

Their competitor does not have to use GPL software to implement the standard -- they are free to re-implement the standard so long as they don't copy code. Compaq seemed to do just fine in terms of copyright with their whiteroom implementation of the IBM BIOS, and that BIOS wasn't even offered under such open terms as GPL software.

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

[Morosoph]

The terms of the GPL prohibit charging for GPL code ever, so real predatory pricing is precluded.

By 'code' here, I assume that you mean 'source'. You can charge what you like for the runtime code, provided that you also ship the source.

If you do not provide another way of providing the source code, they you can charge no more than the reasonable cost of physically making a copy. Also, once three years are up from their last shipping of runtime code, the GPL licencees can charge what they like for the source.

The point isn't that the software is free-as-in-beer, but rather that any shipped software comes with the source, or else the source is easily acquired for the next three years, together with liberal hacking rights. Unshipped runtime code doesn't matter, whether for reasons of price or else any other reason, any more than undistributed code matters.

Absolutely Stupid

[hackus]

How can the GPLv2 which essentially is a public domain license with a few twists of ownership thrown in, violate Anti Trust laws?

Freaks!

I say they can run, but they cannot hide.

-Hack

Re:No, no and ummm ... NO

[Spy der Mann]

GPL is a license to use the software.

The GPL is *NOT* an EULA! It's a DISTRIBUTION license!!!

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.

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

[eison]

"The terms of the GPL prohibit charging for GPL code ever"

This is a horrible misconception.
You can charge whatever people will pay for GPL code.
You just can't sell it to them without also granting them the code and the right to redistribute. That's it. Nothing says no money may change hands.
This is the difference between "free as in freedom" and "free as in beer". GPL code is free as in freedom, not beer.

http://www.gnu.org/philosophy/free-sw.html

Wallace v. FSF already said it doesn't!

[Xenographic]

I wonder what they're going to do about Wallace v. FSF which already decided that the GPL does not violate any anti-trust laws?

IANAL, but it would seem that a court having already decided this exact issue would pretty much kill their case. Wallace lost on summary judgment, which means that the court in that case found that, even if everything he said was true (and that was doubtful), he could not prevail.

In other words, that claim is very likely to go nowhere, fast. The judge in the Wallace case was a well-respected anti-trust expert, too.

Re:Wallace v. FSF already said it doesn't!

[Josef Meixner]

IANAL, but it would seem that a court having already decided this exact issue would pretty much kill their case. Wallace lost on summary judgment, which means that the court in that case found that, even if everything he said was true (and that was doubtful), he could not prevail. In other words, that claim is very likely to go nowhere, fast. The judge in the Wallace case was a well-respected anti-trust expert, too.

The Skype case is in Munich, Germany, a US court does not exactly set any precedent here. But I doubt the decision will be much different to how it would be if it was, as the GPL has been upheld quite often in Germany as well.

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

[MBGMorden]

But wouldn't the first buyer be able to distribute all the code and source as much as he likes as soon as he gets his han on it? Yes, but that needn't be a bad thing. Imagine a "code-for-hire" situation. Some local company asks me to develop a custom application that does SomethingReallyCool(TM). I agree to code this application for a contracted fee under the terms that I own the copyright and that I can license it under any license I so choose. So I code the app for them, GPL license it, and then provide them with the binary code as well as a copy of the source.

I was able to underbid competing developers because I got to reuse various libraries and code that competitors couldn't use. I also can release the finished product on the web for free. Everyone is happy. The original company wanted the application and they got it (with source code as a bonus). Sure they paid while everyone else now gets it free, but they were the ones who wanted it the most. The fee (lower because I was able to reuse code as mentioned) was worth it to them just to get the program they wanted. I got money for my time invested. The community gets a shiny new app that does SomethingReallyCool.

Phone came with sources in France

[srmq]

I bought this phone at the "skype boutique" in the French version of the site several months ago. It did came with a paper leaflet saying that the phone contains GPL covered software and a CD-ROM with the sources of the linux kernel and many other packages (like wpa-supplicant). It is weird that they were still trying to fight this in court in Germany.

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

[init100]

Sure they paid while everyone else now gets it free, but they were the ones who wanted it the most.

And they got to write the specifications.

Re:Buh, Bye, Then.

[bill_mcgonigle]

Oh, right, and this is an eBay company. Double ding.

I hope eBay doesn't use any GPL'ed software, or they're going to be in violation of the GPL by rejecting the license.

The good guys won...

[milesw]

Here's the scoop from the man who made it happen, Harald Welte.