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 _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
