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GPL Successfully Defended in German Court

Zonk posted more than 7 years ago | from the penguin-shoots-penguins-scores dept.

210

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

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210 comments

Legally binding? (3, Informative)

Cheapy (809643) | more than 7 years ago | (#16168235)

So is it now legally binding in Germany?

What does this say about propietry software's licenses?

Re:Legally binding? (5, Insightful)

mindstrm (20013) | more than 7 years ago | (#16168253)

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

Re:Legally binding? (4, Interesting)

caseih (160668) | more than 7 years ago | (#16168681)

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

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

Re:Legally binding? (0)

Anonymous Coward | more than 7 years ago | (#16168743)

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

Re:Legally binding? (1)

Tim C (15259) | more than 7 years ago | (#16169599)

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

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

Re:Legally binding? (1)

fatphil (181876) | more than 7 years ago | (#16169687)

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

FatPhil

Re:Legally binding? (1)

LehiNephi (695428) | more than 7 years ago | (#16168279)

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

Re:Legally binding? (3, Interesting)

Anonymous Coward | more than 7 years ago | (#16168355)

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

Re:Legally binding? (0)

iminplaya (723125) | more than 7 years ago | (#16168527)

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

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

Re:Legally binding? (1)

abertoll (460221) | more than 7 years ago | (#16169503)

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

Re:Legally binding? (5, Informative)

KDR_11k (778916) | more than 7 years ago | (#16168407)

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

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

Re:Legally binding? (1)

frost22 (115958) | more than 7 years ago | (#16168729)

hmmm... IANAL

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

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

Re:Legally binding? (2, Informative)

Anonymous Coward | more than 7 years ago | (#16168873)

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

Re:Legally binding? (3, Insightful)

angel'o'sphere (80593) | more than 7 years ago | (#16169381)

Hm,

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

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

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

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

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

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

angel'o'sphere

Thank YOU GPL nazi! (0, Troll)

antik2001 (535940) | more than 7 years ago | (#16168325)

Thank you from my hearth! I appreciate your hard work and you make me happy for fscing your customers and make my wallet full of good ol' cash. /me goes back to develop BSD licensed software...

Re:Legally binding? (2, Insightful)

Anonymous Coward | more than 7 years ago | (#16168353)

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

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

Re:Legally binding? (4, Informative)

arth1 (260657) | more than 7 years ago | (#16168399)

So is it now legally binding in Germany?

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

Re:Legally binding? (0)

Anonymous Coward | more than 7 years ago | (#16168933)

IAAGL and you, sir, are correct.

Re:Legally binding? (1)

dangitman (862676) | more than 7 years ago | (#16169413)

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

Re:Legally binding? (0)

Anonymous Coward | more than 7 years ago | (#16168449)

So is it now legally binding in Germany?

Bloede Frage. Next...

Re:Legally binding? (1)

noidentity (188756) | more than 7 years ago | (#16169013)

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

Re:Legally binding? (3, Insightful)

mrchaotica (681592) | more than 7 years ago | (#16169093)

What does this say about propietry software's licenses?

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

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

Strange.... (2, Informative)

mark-t (151149) | more than 7 years ago | (#16168255)

I don't get it..

Why were they barred from distributing the product?

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

Re:Strange.... (1)

kfg (145172) | more than 7 years ago | (#16168437)

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

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

KFG

Re:Strange.... (3, Informative)

AuMatar (183847) | more than 7 years ago | (#16168447)

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

Re:Strange.... (3, Insightful)

Pausanias (681077) | more than 7 years ago | (#16168787)

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

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

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

Re:Strange.... (1, Interesting)

JesseL (107722) | more than 7 years ago | (#16169049)

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


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

Re:Strange.... (1)

quiberon2 (986274) | more than 7 years ago | (#16169313)

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

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

Re:Strange.... (1)

angel'o'sphere (80593) | more than 7 years ago | (#16169441)

Hi,

Why were they barred from distributing the product?

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

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

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

angel'o'sphere

GPL vs EULA (2, Insightful)

delirium of disorder (701392) | more than 7 years ago | (#16168259)

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

Re:GPL vs EULA (1)

kfg (145172) | more than 7 years ago | (#16168501)

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

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

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

KFG

Re:GPL vs EULA (1)

Wdi (142463) | more than 7 years ago | (#16168861)

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

Re:GPL vs EULA (1)

kswtch (790406) | more than 7 years ago | (#16168901)

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

Re:GPL vs EULA (1)

dangitman (862676) | more than 7 years ago | (#16169449)

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

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

Re:GPL vs EULA (2, Insightful)

cfulmer (3166) | more than 7 years ago | (#16169395)

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

Here are a few examples:

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

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

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

No distribution of the source? (1, Interesting)

timmyf2371 (586051) | more than 7 years ago | (#16168293)

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

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


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

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

Re:No distribution of the source? (2, Informative)

Sique (173459) | more than 7 years ago | (#16168489)

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

Re:No distribution of the source? (2, Insightful)

Not The Real Me (538784) | more than 7 years ago | (#16168505)

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

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

Re:No distribution of the source? (4, Insightful)

Sique (173459) | more than 7 years ago | (#16168591)

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

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

Re:No distribution of the source? (1)

Paradise Pete (33184) | more than 7 years ago | (#16168599)

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

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

Re:No distribution of the source? (2, Interesting)

KillerBob (217953) | more than 7 years ago | (#16168793)

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

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

Re:No distribution of the source? (2, Interesting)

mrchaotica (681592) | more than 7 years ago | (#16168931)

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

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

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

Re:No distribution of the source? (2, Insightful)

ElleyKitten (715519) | more than 7 years ago | (#16169451)

ou're incredibly naive if you think an unmodified Linux kernel is capable of running an embedded device like that.... In other words, it *is* like it's something they wrote. They stood on the shoulders of others, but they still had to do their own work to get it to work with their hardware and do what they want it to do.
Ok, so they modified it. They're still uses other people's work. Let's say I take Windows XP and modify it. A lot. I make it into a live CD that can run on PPCs. Now, can I just sell copies of my spiffy WinXPlive without giving a damn what Microsoft says? I did all sorts of work on it. But so did Microsoft, so that would be copyright infringment. The GPL is no different, it just lays out the terms of licensing so you don't have to go track down the authors and pay them a shitload of money before using it. But the authors are still there, and it's still copyrighted.

Re:No distribution of the source? (1)

KillerBob (217953) | more than 7 years ago | (#16169531)

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


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

Re:No distribution of the source? (1)

mike2R (721965) | more than 7 years ago | (#16169041)

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

Re:No distribution of the source? (1)

Greg Lindahl (37568) | more than 7 years ago | (#16168671)


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


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

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

Re:No distribution of the source? (0)

Anonymous Coward | more than 7 years ago | (#16168723)

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

How arrogant (3, Insightful)

TheSpoom (715771) | more than 7 years ago | (#16168299)

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

How hypocritical!

Re:How arrogant (4, Insightful)

MrShaggy (683273) | more than 7 years ago | (#16168379)

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

Re:How arrogant (5, Insightful)

Sique (173459) | more than 7 years ago | (#16168521)

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

Re:How arrogant (1)

MrShaggy (683273) | more than 7 years ago | (#16168669)

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

Re:How arrogant (3, Insightful)

mrchaotica (681592) | more than 7 years ago | (#16168963)

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

Re:How arrogant (1)

Sique (173459) | more than 7 years ago | (#16169039)

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

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

Re:How arrogant (2, Insightful)

zecg (521666) | more than 7 years ago | (#16169157)

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

Re:How arrogant (1)

partisanX (1001690) | more than 7 years ago | (#16168867)

GPL is defending the right to copy, modify and distribute

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

Re:How arrogant (1)

ricree (969643) | more than 7 years ago | (#16168913)

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

Re:How arrogant (1)

partisanX (1001690) | more than 7 years ago | (#16169127)

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

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

Re:How arrogant (2, Interesting)

rjstanford (69735) | more than 7 years ago | (#16169329)

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


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

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

Re:How arrogant (1)

squidsuk (850172) | more than 7 years ago | (#16169407)

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

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

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

Did it ever occur to either you... (5, Insightful)

partisanX (1001690) | more than 7 years ago | (#16168603)

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

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

Just keep that in mind.

Re:Did it ever occur to either you... (1)

MrShaggy (683273) | more than 7 years ago | (#16168711)

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

Re:Did it ever occur to either you... (2, Insightful)

squidsuk (850172) | more than 7 years ago | (#16169477)

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

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

Re:How arrogant (1)

EvilIdler (21087) | more than 7 years ago | (#16168617)

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

Re:How arrogant (1)

TheSpoom (715771) | more than 7 years ago | (#16168761)

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

Re:How arrogant (2, Insightful)

wfberg (24378) | more than 7 years ago | (#16169501)

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

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

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

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

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

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

Re:How arrogant (1)

Burz (138833) | more than 7 years ago | (#16169711)

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

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

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

The same D-Link? (5, Informative)

Anonymous Coward | more than 7 years ago | (#16168305)

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

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

Re:The same D-Link? (1)

Sique (173459) | more than 7 years ago | (#16168537)

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

Re:The same D-Link? (0)

Anonymous Coward | more than 7 years ago | (#16168993)

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

Not a TiVo owner, I see.

Re:The same D-Link? (1)

Tim C (15259) | more than 7 years ago | (#16169655)

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

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

Feiern Sie! (0)

Anonymous Coward | more than 7 years ago | (#16168321)

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

Re:Feiern Sie! (1)

udippel (562132) | more than 7 years ago | (#16168421)

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

But why would I answer to an AC, anyway !

Re:Feiern Sie! (0)

Anonymous Coward | more than 7 years ago | (#16169079)

I undersood the original poster's incomprehensibly bad German.

What is the problem with it?

mnb Re:Feiern Sie! (0)

Anonymous Coward | more than 7 years ago | (#16168731)

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

Re:Feiern Sie! (1)

Qbertino (265505) | more than 7 years ago | (#16169533)

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

(Hopefully funny for german and english speaking people alike)

reperations (2, Insightful)

darkchubs (814225) | more than 7 years ago | (#16168337)

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

Re:reperations (1)

lixee (863589) | more than 7 years ago | (#16168391)

If the RIAA didnt seek damages would anyone have stopped Kazaing?
Most people stopped "Kazaing" 'cause of the inherent malware not the RIAA.

Re:reperations (0)

Anonymous Coward | more than 7 years ago | (#16168439)

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

Re:reperations (1)

NewToNix (668737) | more than 7 years ago | (#16168727)

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

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

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

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

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

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

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

Re:reperations (2, Insightful)

kfg (145172) | more than 7 years ago | (#16168833)

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

Damages are about financial loss.

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

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

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

KFG

Re:reperations (1)

mrchaotica (681592) | more than 7 years ago | (#16169031)

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

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

Re:reperations (1)

kfg (145172) | more than 7 years ago | (#16169233)

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

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

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

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

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

KFG

Double Dumb (1)

doublebackslash (702979) | more than 7 years ago | (#16168469)

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

Sorry, no. (1)

imsabbel (611519) | more than 7 years ago | (#16169223)

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

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

You know what really burns me? (2, Interesting)

hullabalucination (886901) | more than 7 years ago | (#16168561)

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

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

* * * * *

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

YUO FAIL iT? (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#16168627)

WOULD LIKE TO marketing surve7s what we've known I don't want to

US Courts (1)

aaronfaby (741318) | more than 7 years ago | (#16168689)

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

I Don't Like D-Link Much (1)

jack_csk (644290) | more than 7 years ago | (#16168809)

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

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

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

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

Re:I Don't Like D-Link Much (1)

mrchaotica (681592) | more than 7 years ago | (#16169081)

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

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

Where are the kernel devs? (1)

metamatic (202216) | more than 7 years ago | (#16169239)

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

Not a test of the GPL (3, Insightful)

foreverdisillusioned (763799) | more than 7 years ago | (#16169505)

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

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

Re:Not a test of the GPL (1)

Tim C (15259) | more than 7 years ago | (#16169733)

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

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

German law system is good more often than bad (1)

Qbertino (265505) | more than 7 years ago | (#16169605)

This is Good News.

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

It's the FDR for God's Sake -- you can't even own (0)

Anonymous Coward | more than 7 years ago | (#16169613)

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