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Re: Monsoon settles: complies with GPL, pays undisclosed sum

From: Geza Giedke
Subject: Re: Monsoon settles: complies with GPL, pays undisclosed sum
Date: Fri, 2 Nov 2007 13:07:17 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (Linux/2.6.5-7.287.3-bigsmp (i686))

Alexander Terekhov <> wrote:
> You must be new here, Geza. 

I've been lurking for quite a while...

> Geza Giedke wrote:
> [...]
> > not so: in German courts, the GPL has been upheld repeatedly:

> Welte's idiotic GPL enforcement theory is based on misapplication of 
> German Rechtsgeschäft concept of "condition subsequent" (misapplication 
> because that concept has absolutely nothing to do with breach of 
> contractual covenants).

> Here's a feedback from one German appellate judge regarding Welte's 
> idiotic GPL enforcement theory: 

an "idiotic theory" that just happens to be the one which conforms
with the German law? Given that for almost every decision one will
find dissenting voices among the lawyers, I am inclined to trust the
court to have interpreted the law correclt unless and until the
court's decision has been overturned.

> (The first-ever ruling on the legal validity of the GPL - A Critique 
> of the Case) 
> Pay special attention to g). 

well, I'm not a lawyer and have had no schooling in this matter, but i
really wonder already in section (b) whether Prof. Hoeren gets the
GPL: He writes: "he user of open source products gets the license to
use the product only on the condition that, and as long as, he sticks
to the rules of the GPL." -- while the GPL of course has *nothing* to
say about usage: "Activities other than copying, distribution and
modification are not covered by this License."

Later he claims that "once an author has sold a copy of a work, he or
she loses the exclusive distribution right with respect to that work."
Of course he can sell the specific copy of software he purchased,
e.g. the SuSE CD. But this is besides the point since nothing gives
the purchaser the right to *copy and distribute copies of* the
software he purchased. Ever wondered why there are no "MS Office for
99cent" offers in German software stores?

Point g) reiterates the error made in b): "According to the Bavarian
judges, if the GPL is legally ineffective, the user does not have a
license and is thus violating copyright law." A *user* can never be in
violation of the GPL: a *distributor* can be!

Now I'm well aware that I haven't and can't cite BGB or other
law books. But in these matters, the Munich judges are certainly highly
competent. Hence their (unappealed) ruling seems to be both in
accordance with German Law and with the text and spirit of the GPL.

> From Hoeren's profile: 
> Judge at the Court of Appeal in Düsseldorf within the Trademark & 
> Copyright Senate; 
> Professor in Intellectual Property Law at the University of Muenster; 
> Member, Task Force Group on Intellectual Property Law, European 
> Commission/DG XIII. 
> He must be Microsoft paid troll, no? 

I have no reason at all to believe he's a troll - he may not
understand the GPL (or I don't or I don't understand him...) but I
like his stance that "freedom of information" trumps the right to
"intellectual property".

> Welte's idiotic GPL enforcement theory:
> The morons from the German district court "Munich I" should better 

this kind of repeated name-calling makes me wonder whether the actual
arguments against the court decision put forward by the poster are not
indeed quite weak...


 Geza Giedke

 Max-Planck Institut fuer Quantenoptik, Garching

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