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GPL vs. Skype Back In Court

timothy posted more than 6 years ago | from the remember-what-a-license-is dept.

The Courts 369

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."

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Violates Anti-Trust?? (5, Insightful)

NoSCO (858498) | more than 6 years ago | (#23337936)

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?? (5, Insightful)

sohmc (595388) | more than 6 years ago | (#23338280)

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?? (5, Interesting)

GooberToo (74388) | more than 6 years ago | (#23339112)

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?? (5, Insightful)

fishbowl (7759) | more than 6 years ago | (#23339536)

>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?? (4, Insightful)

mea37 (1201159) | more than 6 years ago | (#23338862)

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?? (0)

Anonymous Coward | more than 6 years ago | (#23339364)

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. Then microsoft (or some other evil incarnation) comes and sues you and you just say "Well, I never really agreed on the license and what you ask of me is totally unfair, so you have no right to sue me."

Re:Violates Anti-Trust?? (5, Insightful)

joostje (126457) | more than 6 years ago | (#23339644)

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?? (1)

lorenzo.boccaccia (1263310) | more than 6 years ago | (#23339714)

no, EULA applies to sales and the controversy is that you have to accept the eula after the money transaction is completed. In this case, the GPL usage is clearly stated before you have accepted to use the code and BEFORE the right of usage is transferred/licensed.

I fought the license.... (3, Funny)

jeiler (1106393) | more than 6 years ago | (#23337980)

...and the license won!

Re:I fought the license.... (4, Funny)

sm62704 (957197) | more than 6 years ago | (#23338086)

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

Re:Sitting on my encounter-suited butt. (1)

jimwelch (309748) | more than 6 years ago | (#23339148)

"Sitting on my encounter-suited butt."
Do Vorlons have butts?? They are energy beings!

Wearing a tie is a *sin* against man and God!

Re:I fought the license.... (0)

Anonymous Coward | more than 6 years ago | (#23339206)

GPL takes on all-comers currently undefeated!!

Simple Solution (5, Insightful)

Nom du Keyboard (633989) | more than 6 years ago | (#23338000)

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 (5, Insightful)

moderatorrater (1095745) | more than 6 years ago | (#23338052)

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 (5, Insightful)

neokushan (932374) | more than 6 years ago | (#23338070)

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 (4, Informative)

Bryansix (761547) | more than 6 years ago | (#23338404)

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 (2, Insightful)

emag (4640) | more than 6 years ago | (#23338594)

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 (5, Insightful)

Bryansix (761547) | more than 6 years ago | (#23338774)

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 (4, Insightful)

L4t3r4lu5 (1216702) | more than 6 years ago | (#23338836)

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

Re:Simple Solution (2, Insightful)

McDutchie (151611) | more than 6 years ago | (#23338864)

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 (1)

robertjw (728654) | more than 6 years ago | (#23339766)

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.


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. Support the open source portion as you should, and keep your proprietary codebase clean. You really can have it both ways, why not just do it.

Re:Simple Solution (5, Insightful)

peragrin (659227) | more than 6 years ago | (#23338464)

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 (0, Troll)

cream wobbly (1102689) | more than 6 years ago | (#23339762)

"Abuse"? The BSD license is designed to allow closed-source derivatives. It would only be "abuse" if BSD expressly forbade that kind of action; like the GPL. Now, if it's proven that Apple has broken the terms of the GPL, then that's another matter. Until then, don't be such a silly soft.

Re:Simple Solution (2, Interesting)

Redlum_Jak2 (1171573) | more than 6 years ago | (#23338916)

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 (3, Funny)

HardCase (14757) | more than 6 years ago | (#23338490)

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

Re:Simple Solution (0)

Anonymous Coward | more than 6 years ago | (#23339298)

if you don't want people stealing your ride, you should have bought a car with doors that you can actually lock

Re:Simple Solution (3, Informative)

rs79 (71822) | more than 6 years ago | (#23338516)

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 (-1, Troll)

RandoX (828285) | more than 6 years ago | (#23338664)

Get back to me when your exes dad has something to say about the topic.

Re:Simple Solution (1)

EasyTarget (43516) | more than 6 years ago | (#23338926)

What, you mean, like when the original article mentions anti-tust law, or somesuch?

I wonder... (2, Interesting)

jskline (301574) | more than 6 years ago | (#23338022)

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 (5, Insightful)

Bruce Perens (3872) | more than 6 years ago | (#23338036)

The anti-trust theory was already tried in Wallace vs. International Business Machines et al. [wikipedia.org] . 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 (5, Interesting)

R2.0 (532027) | more than 6 years ago | (#23338232)

"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 (2, Interesting)

Toonol (1057698) | more than 6 years ago | (#23338732)

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 (2, Informative)

R2.0 (532027) | more than 6 years ago | (#23339370)

"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 (3, Interesting)

no-body (127863) | more than 6 years ago | (#23338330)

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....

If it wasn't so dumb... (5, Insightful)

Bruce Perens (3872) | more than 6 years ago | (#23338760)

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... (4, Interesting)

Chris Burke (6130) | more than 6 years ago | (#23339016)

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:Anti-trust theory already tried, and failed (2, Interesting)

Richard_at_work (517087) | more than 6 years ago | (#23338930)

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 (1)

MrNaz (730548) | more than 6 years ago | (#23339470)

Please point me to the spot in the post you are replying to where MS is mentioned or even implied.

Re:Anti-trust theory already tried, and failed (2, Interesting)

Anonymous Coward | more than 6 years ago | (#23338332)

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 (3, Informative)

HardCase (14757) | more than 6 years ago | (#23338452)

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 (5, Interesting)

peragrin (659227) | more than 6 years ago | (#23338502)

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 (1)

MRiGnS (1125139) | more than 6 years ago | (#23339634)

Unlike in the US, precedence has absolutely no value in the German law or court system.

Re:Anti-trust theory already tried, and failed (4, Informative)

Hozza (1073224) | more than 6 years ago | (#23338528)

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 (3, Informative)

Alphager (957739) | more than 6 years ago | (#23339238)

(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.

even if Skype wins this one... (1)

someone1234 (830754) | more than 6 years ago | (#23338560)

If the GPL is invalid, what license they used when they took the original source?
Fighting the only license that makes your code usage legal equals suicide.

Re:even if Skype wins this one... (0, Troll)

MrNaz (730548) | more than 6 years ago | (#23339508)

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

Re:even if Skype wins this one... (5, Informative)

RKThoadan (89437) | more than 6 years ago | (#23339716)

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.

Re:Anti-trust theory already tried, and failed (4, Informative)

c0p0n (770852) | more than 6 years ago | (#23338616)

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

Re:Anti-trust theory already tried, and failed (2, Interesting)

kripkenstein (913150) | more than 6 years ago | (#23339404)

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 (2, Informative)

penix1 (722987) | more than 6 years ago | (#23339452)

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.

Shooting itself in the foot (5, Interesting)

Dancindan84 (1056246) | more than 6 years ago | (#23338072)

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?

Mod parent up (1)

Raul654 (453029) | more than 6 years ago | (#23338112)

I was about to say the same thing. The license is the only thing that keeps the people who wrote the source code from suing them. They would have to invalidate the license, and somehow get the judge to declare the source code to be in the public domain, or some such nonsense. Even if the judge grants their motion, I don't see how this is going to fly.

Re:Mod parent up (-1, Troll)

MrNaz (730548) | more than 6 years ago | (#23339530)

Not so. Were the GPL to be invalidated, because the source is free and the terms it was offered under are invalid, then the code would automatically revert to the public domain.

Re:Mod parent up (2, Informative)

belroth (103586) | more than 6 years ago | (#23339596)

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

Re:DON'T Mod parent up (1)

JetScootr (319545) | more than 6 years ago | (#23339728)

(In the US at least) If the GPL is invalidated, the copyright of the source remains with the creator of the code. Copyrighted works do not "automatically revert" to the public domain. It requires a specific decision by a judge to do so.
At any rate, it won't be invalidated in the US or any other even slightly reasonable jurisdiction.
The "default" access one has to source code is zero, so any license you grant is giving to others, not taking away. Since the GPL gives so much more than proprietary licenses, invalidating it would potentially invalidate every proprietary license that gives less or demands more actions from the licensees.

Re:Shooting itself in the foot (5, Funny)

91degrees (207121) | more than 6 years ago | (#23338178)

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 (-1, Offtopic)

Dancindan84 (1056246) | more than 6 years ago | (#23338240)

Option 5 ?????
Option 6 Profit?

Re:Shooting itself in the foot (1, Insightful)

Anonymous Coward | more than 6 years ago | (#23338482)

Judges generally prefer low-impact rulings that set little precedent and make little waves beyond righting the wrongs done. If you recall the Artistic License case a while back, the judge ruled that violating the license didn't suddenly make it copyright infringement, merely contract violation. In this case you would have to prove and quantify damages, which with open source is nearly impossible (really, what's the financial damage done by failing to provide yet-another copy of the kernel source).

Geeks like us tend to see things as binary, algorithmic, "EITHER gpl is valid OR it's copyright infringement". This naive take on the law will blindside us when more cases like this proceed to trial unsettled.

Re:Shooting itself in the foot (2, Informative)

trifish (826353) | more than 6 years ago | (#23338860)

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.

Re:Shooting itself in the foot (1)

Ares (5306) | more than 6 years ago | (#23339412)

And it is perhaps that section alone which would cause me to use the GPL for software I write rather than one of the other licenses. The JMRI case referred to in the GP post definitely opened my eyes to that. And in the US at least, that potentially makes the infringer liable for a large sum of money for each violation. Which is why JMRI is appealing to get the case back in the domain of copyright.

Re:Shooting itself in the foot (1)

arthurpaliden (939626) | more than 6 years ago | (#23339818)

Unless of course they consider that they are just renting access to their closed network and that the software and / or device is part of it. So since they have not sold it to a customer, as such, the GPL distribution clause does not apply.

Dumb! (1)

sm62704 (957197) | more than 6 years ago | (#23338130)

Anti-trust regulations govern companies. The GPL is not a company. I have no idea how skype thinks this will fly.

Re:Dumb! (3, Interesting)

cfulmer (3166) | more than 6 years ago | (#23338376)

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.

Re:Dumb! (1)

Tuoqui (1091447) | more than 6 years ago | (#23338708)

And if the competitors didnt want to abide by the GPL they could just as easily hire developers to 'reinvent the wheel' so to speak... Saving time is the benefit of the GPL, releasing your modifications in source code format is your obligation under the GPL.

If you use it, you have to abide by it. Just like when you install a copy of Windows on your machine. You basically have an agreement that you wont install it on like 50 computers with the same key or something unless you have volume licensing or some other special agreement. Technically its an EULA/Contract/License just like Microsoft Windows EULA is... If they shoot down the GPL then it does not bode well for proprietary software's EULA's holding up in court either.

Re:Dumb! (2, Informative)

igb (28052) | more than 6 years ago | (#23338784)

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! (4, Informative)

Ares (5306) | more than 6 years ago | (#23339174)

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.

Re:Dumb! (1)

igb (28052) | more than 6 years ago | (#23339474)

But they can't incorporate the changes that are made by others into the non-GPL'd release, because those changes _are_ GPL'd.

You can dual-license your own code, of course, with one version released under the GPL and another version, derived from the same codebase, under a completely closed license. But the scenario in the grandparent was that a company could incorporate other users' changes back into the closed release. They can't: you can't dual-license, and then take changes made by other people in the GPL'd version and release them in the closed version.

Re:Dumb! (1)

Ares (5306) | more than 6 years ago | (#23339742)

Exactly. I didn't read the GP as though the company was releasing the other companies' changes. I suppose in re-reading the post, that could be implied by the competitive advantage statement, but I didn't think of it that way initially. You, JetScootr, and Chandon are completely right once incorporating the external changes and redistributing the software. But that's why we all love the GPL in the first place :)

Re:Almost no usefulness to doing so... (2, Informative)

JetScootr (319545) | more than 6 years ago | (#23339548)

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:Dumb! (1)

Chandon Seldon (43083) | more than 6 years ago | (#23338812)

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

That strategy breaks down as soon as they incorporate anyone else's changes into their version. The GPL doesn't require any copyright assignments, so the product would then have two separate copyright holders - and both are bound to release their changes in order to meet the GPL license on the other one's code.

Re:Dumb! (1)

Klaus_1250 (987230) | more than 6 years ago | (#23339008)

If the company distributes software itself, it will have to release to source-code. If you distribute software under the GPL, source-code must always be accessible (on request).
Second, you can only create a defacto standard if it is accepted within the industry. If you have a monopoly, you can effectively force (defacto) standards, but that's another story.

Re:Dumb! (0)

Anonymous Coward | more than 6 years ago | (#23339220)

you missed the part, where they added the code to the gpl licensed software - not the one with the internal license

so the changes are only valid for the gpl'd version

when they use these changes in their internal version, they commit a copyright violation

Re:Dumb! (2, Insightful)

shentino (1139071) | more than 6 years ago | (#23339318)

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.

Re:Dumb! (0)

Anonymous Coward | more than 6 years ago | (#23339398)

But, if they wanted to include ANY changes submitted to the GPL-based branch, then their code base would become GPL, or they could no longer sell their closed version.

Quite incorrect. (0)

Anonymous Coward | more than 6 years ago | (#23339486)

Greetings,

      The GPL covers the software, not the standard that the software is applied to. So in order for the other companies to be required to follow the GPL is if the original company distributed it's code as GPL, or released a standards document that was somehow called out as GPL.

      The GPL is in no way a cross-licensing agreement, instead it is a copyright and fair usage agreement. As such, even if the first company were to release a standards document under the GPL, the other companies would not be required to follow the GPL, unless they released their own standards documents, which happened to be based on the original.

GPL code already available? (2, Interesting)

Ford Prefect (8777) | more than 6 years ago | (#23338148)

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

Re:GPL code already available? (1, Informative)

Anonymous Coward | more than 6 years ago | (#23338534)

Content:
WPA supplicant
u-boot (boot loader)
libjpeg
linux kernel 2.6.9
curl
busybox
binutils
gcc
glibc

Maybe (5, Interesting)

jav1231 (539129) | more than 6 years ago | (#23338352)

Maybe it's time I shitcanned my Skype account.

Re:Maybe (0)

Anonymous Coward | more than 6 years ago | (#23338840)

I jumped ship back when they took an anticompetitive piss [slashdot.org] on AMD.

Re:Maybe (0)

Anonymous Coward | more than 6 years ago | (#23338994)

Thinking about that too. I use Skype quite a lot for International calls. What's the alternative ?

SIP is the *open* and *free* alternative (4, Informative)

gnuman99 (746007) | more than 6 years ago | (#23339438)

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/ [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 [sipcenter.com]

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 [grandstream.com]

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.

Re:Maybe (0)

Anonymous Coward | more than 6 years ago | (#23339050)

I did a long time ago, after some reading [blogspot.com] , when Skype wasn't eBay yet and this was just in [news.com] .

Qutecom [qutecom.org] just about does the job for me - and it's Free as in Speech.

what goes around comes around (0)

Anonymous Coward | more than 6 years ago | (#23338542)

Well, if Skype somehow wins, maybe we should take up and sue Skype for their license being illegal? If Skype doesn't feel that they need to adhere to a license agreement, why do they expect their customers to adhere to their license?

captcha: prejudge

Why didn't they use NetBSD? (1, Interesting)

Anonymous Coward | more than 6 years ago | (#23338580)

Disclaimer: I use Linux (Debian) and FreeBSD. And never used or installed NetBSD (yet).

But if I had to pick an OS that worked on commercial devices such as phones, I would see if NetBSD met my needs before choosing Linux (assuming I didn't want to comply with GPL):

a. because it is an OS designed to work on numerous hardware platforms

b. because it uses a BSD license which does not require the resulting works to be published as open source

Why do companies continue to screw up by overlooking alternative OS that don't require them to challenge GPL in court?

But from the perspective of a consumer, I'm really enjoying Linux-based firmware like Tomato 1.19 (think of it as DDWRT minus less-frequently used features, plus AJAX interface)

Please enlighten me (0)

Anonymous Coward | more than 6 years ago | (#23338582)

From the way this looks, should the GPL be targeting SMC, the company that actually makes and sells the device that Skype's software is running on?

I'm trying to wrap my brain around the merits of the original case, which seems akin (using an admittedly poor analogy) to Microsoft suing Nero for Dell not including instructions to re-install the OS.

Re:Please enlighten me (1)

trolltalk.com (1108067) | more than 6 years ago | (#23338814)

From the way this looks, should the GPL be targeting SMC, the company that actually makes and sells the device that Skype's software is running on?

As you pointed out, it's Skype's software that is in question here. Skype is the one who isn't releasing the source, which they were supposed to give to SMC when they gave the binaries.

However, just to be on the safe side, I'd name SMC as a codefendent and ask them if they received their copy - and if not, to stop distributing the software/hardware bundle.

Re:Please enlighten me (0)

Anonymous Coward | more than 6 years ago | (#23339356)

Except the ruling was regarding how the source code for the version of Linux used on the phone was made available (which was done by including a URL to download it - Apparently the internet is not a "medium customarily used for software interchange"...)

Again, this is an issue with how the manufacturer of the phone is operating. While I work at neither Skype nor SMC, I find it is unlikely that Skype would make the modified version of Linux that runs on SMC's device.

What is their argument? (1, Interesting)

Anonymous Coward | more than 6 years ago | (#23338772)

I'm interested to hear how they argue that GPL violates anti-trust regulations.

I can only find the argument by Wallace that essentially said it was a collusion to lock him out of the OS market by providing an 'unbeatable price'.

I'm assuming Skype must have some other angle. Otherwise I suspect folks will want to have a word about their 'unbeatable prices'!

Antitrust? (3, Insightful)

Millennium (2451) | more than 6 years ago | (#23338778)

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? (0, Interesting)

Anonymous Coward | more than 6 years ago | (#23339018)

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

but this is irrelevant: no one complains when Coke doesn't let Pepsi use the Coke recipes
People complain about printer companies locking inks, or automobile manufacturers locking down replacement parts.
There's a chance that GPL gets treated like those restrictive EULA's, where overall it's not illegal, but parts of it get invalidated for being too restrictive.

Re:Antitrust? (1)

sqlrob (173498) | more than 6 years ago | (#23339144)

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

How is this any different from restrictions that may exist on proprietary licenses? Doesn't WindowsCE require all changes be given to MS?

Re:Antitrust? (1)

Ares (5306) | more than 6 years ago | (#23339624)

No one is forcing anyone to release their source code. The decision to use and incorporate software under the GPL into one's own proprietary software is solely the decision of the person/company incorporating it. The GPL is quite clear in stating that "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." Just as it is a choice to use proprietary software, it is a choice to modify and distribute GPL'ed software. The price paid for using proprietary software is frequently in the form of a licensing fee to the author of that software. Similarly, the price paid for modifying and distributing GPL'ed software is that you must also release your modifications to that software. If one does not wish to pay that price, one should not be consuming the software; a choice to consume the software is a choice to pay the associated price.

Re:Antitrust? (3, Funny)

rkanodia (211354) | more than 6 years ago | (#23339380)

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.

Linus is right (0)

Anonymous Coward | more than 6 years ago | (#23339028)

I am with Linus on this one.
His arguments simply make sense to

GPL- no like -no use (0)

Anonymous Coward | more than 6 years ago | (#23339086)

If you don't like the terms of the GPL license.
Don't use GPL'd software.
Write your own and quit leaching a profit off of it.
If you use GPL'd software improve it for all.

What this case is really about (3, Interesting)

Ares (5306) | more than 6 years ago | (#23339280)

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.

GPL wasn't provided .. ? (1)

rs232 (849320) | more than 6 years ago | (#23339462)

"After the initial GPL violation, a flier with the URL for the source was added to the package. The GPL wasn't provided and the court found this insufficient for fulfilling the requirements of the GPL"

I went to the SMC [smc.com] site and it includes the GPL in the firmware section. What exactly is the violation?

GPL section 9 throws this case out. (3, Informative)

IGnatius T Foobar (4328) | more than 6 years ago | (#23339500)

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.

the GPL violates anti-trust regulations .. ? (1)

rs232 (849320) | more than 6 years ago | (#23339614)

Is Skype trying to pull an SCO, in other words trying to commit economic suicide. Assuming their argument is upheld (which is very unlikly) what would be the effects on the rest of the Open Source universe. Someone already tried to play the anti-trust [news.com] card and failed, way back in Nov 2006.

Pulling an SCO: proverb

Definition: sueing the people you rely to do business with.
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