GPL Vs. Skype Back In Court

UPDATE: Skype has withdrawn their appeal and accepted the original judgment.

Tomorrow the High District Court of Munich will hear Skype argue against the validity of the GPL. Last June, the court issued an injunction against Skype for selling the SMC WSKP 100, a Linux-based WiFi VoIP phone. After the initial GPL violation, a flier with the URL for the source was added to the package. The GPL wasn’t provided and the court found this insufficient for fulfilling the requirements of the GPL. Skype is appealing and claims that the GPL as a whole violates anti-trust regulation. The case against Skype was brought by OpenMoko‘s original system architect, Harald Welte, as part of his work for

18 thoughts on “GPL Vs. Skype Back In Court

  1. This isn’t the first time a corporation has challenged the validity of the GPL, and I doubt it will be the last. Hopefully Mr. Welte and company come out on top, either way this will definitely be something to follow.

  2. By the way, if the GPL isn’t binding, skype wouldn’t have the right to copy the code, because law forbids it.

    >3. It would be nice for a president to be set for whether or >not the GPL is legally binding.
    >Posted at 10:01PM on May 7th 2008 by Alex

  3. The GPL grants other people rights, like copying, modifying, distributing etc. If the GPL is not valid, those rights would not be granted, thus Skype would violate the copyrights of the original authors. Either way, they loose. They can’t say, “I like the GPL’s part of being able to make money with other people’s software, but I don’t like putting the source code on a CD”. Either they accept and obey it, or they can’t use the code.

    And no, Skype and Ebay are not awesome, they are crap, and getting crappier every day.

  4. @baf: If you think it is “viral” and “overzealous”, don’t use it.

    It’s not like if you put your hard disk wet for long times, all source code on it will become GPLed! Take responsibility for your own action.

  5. All of you who keep saying “if the license is invalid, they’re violating it” (or whatever — maybe I just don’t understand you) don’t seem to grok that the court is likely to be considering only a portion of the GPL, not the whole thing. And even if they were to invalidate the whole license… then what? It’s not like there’s some “universal default license” that’s more restrictive than GPL that applies to all software if no (legal) license is specified.

    I like the idea of having a boilerplate standard “copyleft” license that you can just drop in if you want your code to be free. But I don’t like the idea that in order to sell a product that uses any of that code, you not only have to include the source of the GPL’d code you used (which is an unnecessary burden when your consumer is quite likely to have Internet access), but AFAIK you’re also pretty much required to GPL your own code, whether you want to or not.

    In short, I agree with #2: it’s “too viral”, and I think that quality is going to do more to hold Linux back than a thousand MS marketing campaigns.

  6. It is possible for a court to find part of a contract invalid without invalidating the entire contract. This happens all the time, and the law often contains clauses specifically stating that the remainder of the contract continues to be binding even if clauses are struck down by a particular law. For example, rental agreements in the US often violate the law by stating that the landlord has rights that are fobidden by law, but challenging those clauses doesn’t make your lease meaningless.

    So, *theoretically*, yes, the court could declare that the need to include source code was excessive while still allowing Skype to copy the GPLed code. I think it extraordinarily unlikely to succeed, but I think I actually can see their argument, and I can’t swear it won’t. IANAL, and don’t know anything about German anti-trust laws anyway.

    But frankly, I think they are grasping at straws.

  7. The idea that the source is automatically illegal to use if GPL is downed is wrong. The court could well decide that, but that’s not the only possible outcome. Within very broad legal limits, they can decide whatever they want. And German courts are civil-law proceedings, not common-law, so there’s no concept of precedent. It will be interesting, that’s for sure.

  8. Even if providing source code is considered onerous, I find it hard to imagine any court ruling that it’s OK to omit the license agreement from licensed software.

    If they’ve got a leg to stand on, then it’s a poorly-informed judge, but as a strong industrial nation, I expect the Germans are genned up on this sort of thing.

  9. Without further explication, baf’s comment is just a troll. What baf refers to as “viral” is the pejorative way to discuss how the GPL preserve user’s software freedom (the freedoms to run, inspect, share, and modify at any time). A more fair way to understand why and how these freedoms are defended in the GPL is to understand the concept of “copyleft” (see

    If anyone doesn’t care for the GPL they can write their own code and copyright law gives them the power to license it as they wish (the act of licensing is a power, not a freedom, because licensing means setting rules that affect others more profoundly than oneself). Free software hackers have no obligation to aid proprietors. It should be obvious that proprietors have operated on a similar philosophy, but what makes them worse is that their programs deny users the aforementioned freedoms and in so doing deny users independence and community of people who can share with each other.

    So having software freedom (which all free software licenses respect) is great, but defending software freedom (which only the strong copyleft licenses such as the GNU GPL do) is better.

    If we don’t talk about the value of freedom we’re much more likely to lose it. The values the GNU Project stands for should be understood as valuable in their own right, as good unto themselves.

  10. The problem “Attornoid of Doom” is that the default for all the rights the GPL grants is that you do not already have them under U.S. law. For those rights to be granted *Without* recognizing that the recipient is bound to the corresponding responsibilities and recognizing the GPL as a legally binding contract, you have to grant those rights in express violation of copyright law.

    IANAL either, but the responsibilities the GPL binds you to are sufficiently simple and well spelled out that I can’t see such a decision standing. The code isn’t public domain code, you used it in a way that the GPL grants with certain responsibilities in mind, and you failed to meet those responsibilities.

    As contract law, it’s a pretty clear issue.

  11. Ebay used to be awesome but lately it has been getting pretty crappy esp that latest website update it has me missing the old site.
    As for skype they should publish the source code as often many builds are broken trash a good example was the 5 call limit they used have on AMD cpus.

  12. Re: James
    I don’t think the GPL requires to ship the source code with the product. That indeed would be a burden. I think it is more ment that the source code is accessible to the public. If they release the source code on their website and link it that would be ok. Pls correect me if i’m wrong but if I install a linux kernel it comes as a binary file. If I want the source code I will have to download it seperately.

    Regarding rereleases to the community, I think this is only fair for smaller contributers. It protects open source projects from companies who intentionally take code from an open source project and “extend” it with their own proprietry extensions, effectively killing off the initial effords. Check out Microsofts embrace extend strategy.
    There are licenses which exclude the rerelease clausel (BSD, double licensed) but while it is certainly subjectiv from my point of view, I have the feeling that many of them are less frequented and often lack documentation compared to gpled projects.

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