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Re: Monsoon settles: complies with GPL, pays undisclosed sum
From: |
Alexander Terekhov |
Subject: |
Re: Monsoon settles: complies with GPL, pays undisclosed sum |
Date: |
Fri, 02 Nov 2007 12:54:47 +0100 |
You must be new here, Geza.
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:
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
(The first-ever ruling on the legal validity of the GPL - A Critique
of the Case)
Pay special attention to g).
The judgment in English is here:
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL2_20040903.pdf
>From Hoeren's profile:
-----
EXPERIENCE IN INTELLECTUAL PROPERTY
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?
See also
http://www.jbb.de/judgment_dc_frankfurt_gpl.pdf
("the possibly invalid part [of the GPL] (Sec. 2 of the GPL) is
inseparably connected to the primary obligation, i.e. the grant of the
license ... incorporated into the contract by virtue of the preamble
of the GPL")
and reread Hoeren's feedback g).
In a way, the district court told Welte:
Dear Plaintiff, you're not barred from claiming invalidity of the
entire contract (due to antitrust or whatever violations in this or
that clause)... thank you for inducing others to break the law
(antitrust or whatever) and please don't forget to sue all other
parties to your entirely invalid contract and collect damages on the
grounds of copyright infringement from them as well.
("Defendant argues, the provisions of the GPL violate Article 81 EC
and Section 1 of the German Antitrust Act (GWB), in particular the
prohibition against price fixing and of predetermining the conditions
of secondary contracts in the first contract. This would, according
to Section 139 of the German Civil Code (BGB), result in the
invalidity of the entire license agreement with the consequence that
Defendant would not have a right of use in the software at all, so
that Plaintiff could file a copyright infringement claim for that
reason ... be entitled to plead invalidity of the entire contract
and therefore allege that Defendant is lacking any license [to the
three programs] whatsoever. ")
> eg. against Skype in 2007:
> (in German): http://www.golem.de/0707/53684.html
> http://yro.slashdot.org/article.pl?sid=07/07/24/174240
The morons from the German district court "Munich I" should better
learn what "first sale" ("copyright exhaustion" in EU speak) is
about. To quote Appellate Judge Hoeren from the Copyright Senate
of Düsseldorf Court of Appeals,
http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf
"The ignorance of the Munich court as to the opinio communis can
also be demonstrated in connection with the problem of exhaustion.
If the GPL is regarded to be binding even in cases of the transfer
of software to a third person, the concept of exhaustion might be
violated. The European Software Directive has provided that the
exhaustion of the copy of a program is applied Community-wide by
a first sale of that copy in the Community with the consent of the
right-holder; once an author has sold a copy of a work, he or she
loses the exclusive distribution right with respect to that work.
A contractual limitation of this principle is held to be invalid,
at least in Germany and Austria. The Munich court obviously did
not know of these developments; instead it simply stated that the
German copyright legislator had once expressed its support for
Open Source. However, this support has been given only in other
legislative debates regarding mandatory rights of creators to
adequate remuneration. But even if the legislator generally likes
Open Source, it does not at all mean that the legislator supports
and considers every rule of the GPL as legally effective."
http://www.linuxdevices.com/news/NS8939845710.html
"In response to inquiries regarding a German court's ruling that
Skype had breached the GPL, the company told LinuxDevices.com
today that it "has not acted improperly." The alleged violation
was associated with the method by which Skype "distributed" GPL-
licensed source code with a Linux-powered VoIP handset.
A July 24 posting by Dr. Julia Kueng on the website of the
Institute for Legal Questions on Free and Open Source reported
that Gpl-violations.org, a Germany-based group headed by software
developer Harald Welte had recently prevailed in a lawsuit it
brought against Skype for allegedly violating an aspect of the
GNU GPL (GNU General Public License).
The violation reportedly involved the manner in which Skype
distributed a third-party product, a VoIP handset with an
embedded Linux kernel and supplied by SMC Networks as model
WSKP100 (depicted on the right). The suit alleged that Skype
failed to supply a copy both of the source code and of the GPL
license itself -- as required by the GPL -- along with the
handset to its purchasers.
Skype reportedly defended itself against the suit by noting
that URLs provided within the handsets' documentation pointed
customers to where they could download both the GPL and the
relevant source code. According to Dr. Kueng, the German court
denied the sufficiency of Skype's defense, and ruled that Skype
had breached section 3 of the GPL.
In an email received this morning by LinuxDevices.com, Imogen
Bailey, director of global PR, stated:
"Skype is surprised by the recent decision and believes that it
has not acted improperly. At this time, we cannot comment further
because Skype is considering its options in relation to appealing
this regional judgment."
According to Dr. Kueng's posting, SMC Networks -- which
manufacturers the WSKP100 -- is the target of a similar case that
remains to be decided."
regards,
alexander.
--
"The revolution might take significantly longer than anticipated."
-- The GNU Monk Harald Welte
- Re: Monsoon settles: complies with GPL, pays undisclosed sum,
Alexander Terekhov <=