GPL Successfully Defended in German Court

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."

Legally binding?

[Cheapy]

So is it now legally binding in Germany?

What does this say about propietry software's licenses?

Strange....

[mark-t]

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?

The same D-Link?

[Anonymous Coward]

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:Legally binding?

[arth1]

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?

[KDR_11k]

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:Strange....

[AuMatar]

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:No distribution of the source?

[Sique]

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:Legally binding?

[Anonymous Coward]

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:Strange....

[chgros]

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

Re:GPL vs EULA

[ClamIAm]

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.

Hey, I have an idea. Instead of posting something that draws on no actual facts, you could take two minutes and read their homepage [gpl-violations.org]:

The founder, Harald Welte ... [discovered] companies violating the GPL in software he wrote for the netfilter/iptables project.

...

Over time, some other Linux kernel developers have transferred their rights in a fiduciary license agreement to enable [enforcement of] the GPL in cases where [no code was written by Welte].

Re:Legally binding?

[Anonymous Coward]

IANAL, and I'm from Europe, so this may be different in the US.
Over here, though, an EULA cannot be enforced unless you buy the software directly from the company that wrote it. The reason for this is that buying an off-the-shelf copy of, say, Windows XP from your local computer store is a deal between two parties - you and the store owner. Therefore, Microsoft is not an involved party in this deal, and thus cannot dictate what you may or may not do with the software.
Of course, if you buy directly from Microsoft, as most companies with volume licensing, software assurance, and similar license agreements do, then the EULA becomes part of your contract and you have to obey it or face the consequences.

Re:Legally binding?

[zcat_NZ]

The GPL is NOT legally binding. It never has been, and it never claimed to be.

Copyright law is legally binding. If you want to distribute copies of software (Be it Microsoft's or Richard's or Linus's) you need permission from the copyright holder. You're quite welcome to completely ignore the GPL, but in that case you have no permission to distribute copies of the software and doing so becomes copyright violation.

It's really simple.

Re:Strange....

[spitzak]

You missed these:

4) Replace the GPL portions with code you wrote or bought

5) Replace the NDA ones with code you wrote or bought

Re:Legally binding?

[Anonymous Coward]

Get your "Object Verb Subject" straight if you want to discuss this.

"GPL" "is" "license"
"people" "violate" "copyright"
"people" "use" "license"

no such thing as

"GPL" "violates" "copyright"

Re:How arrogant

[babbling]

No, the story is about DLink being offered a (free!) GPL license and refusing it, and yet continuing to distribute the code that they were offered the GPL license for.

Re:No distribution of the source?

[man_of_mr_e]

The quintessential example is GNU Readline. GNU Readline is a library that is deliberately licensed under the GPL (not the LGPL) in order to "encourage" people to GPL the rest of their software if they need use of it. Basically, linking the Readline library into your application and distributing it requires you to GPL your entire application, even though merely linking to an unmodified library could hardly be called deriving the work from it.

This aspect of linking which requires relicensing is what makes GPL detractors claim the GPL is "viral". Merely placing GPL'd code in the same process space as a non-GPL'd program requires the non-GPL'd program to "catch" the GPL (if the author want's to distribute it).

Re:Legally binding?

[ista]

This single court decision is binding (when not calling for appeal) and D-Link in between acknowledged that they won't challenge the decision.

It's important to note that you can't quote a precedent in Germany, as the german law doesn't take care of previous cases.
E.g. a court in munich decided back in 2004, that the GPL does apply (back then: for netfilter/iptables) and can be enforced (in that case, against Sitecom, another router vendor).

You can present that there have been a dozen decisions in one direction, but usually that doesn't have any impact on the court's decision. So this single court decision can't be regarded as a test case, but it still improves the situation for defending the GPL a little bit - as a reference, but not as a precedent. In fact, there are quite often cases where different highest regional courts do state completely opposite decisions for very much comparable, but arguable cases.
For example, german websites have to show an imprint, stating a few legal things along with contact information (full name, postal address, usually phone number and email address). OLG Hamm decided that you don't have to state your phone number, an email adress with an often checked account ist satisfying, while OLG Cologne previously stated a very different view in a much noted court decision.

This recent D-Link case is still somehow cumbersome:

D-Link tried to rely on section 2 of the GPL, which might be unenforcable under german law or in some interpretation violate german or even european law. As the GPL doesn't contain a severability clause (it doesn't render a whole document invalid just because a part of it is regarded as invalid), this might've taken down the whole GPL (this needs to be considered for new versions of the GPL!). D-Link argued that without a valid license, this open source software would've been completely free from any rights or licenses.

The court revoked that idea, because setting some code under GPL still doesn't remove your copyright on that code; so D-Link could've been challenged for copyright infringement and all parties settled for section 4 of the GPL, completely ignoring anything out of that scope.

The court's decision (of course in german) can be found at http://www.jbb.de/urteil_lg_frankfurt_gpl.pdf [www.jbb.de] (scanned fax pages).
The name "D-Link" has been striked out, due to some other law thingie (jbb.de are the lawyers for gpl-violations.org any may not offend privacy rights of the other party), but the rest is still complete.