Death of a Meme: GPL Wins in Court Again


One of the favourite anti-open source memes used to be that the entire free software edifice was built on sand – to whit, the GNU GPL. This licence, which uses copyright law to give users extra freedoms provided they accept its conditions, was regarded by many in the software industry as so counter-intuitive as to be self-evidently impossible to enforce in the courts. After all, they reasoned, how could any sensible judge contemplate enforcing copyright law in a way that undermined itself?

And so the meme that one day open source would come a cropper when its main licence was shown to be “invalid” took hold, fondly nourished by the hopes of all those whose livelihoods depended on proprietary software. One reason it flourished was that there was so few cases that might test its hypothesis. Critics claimed this was because the custodian of the GNU GPL, the FSF, knew it was on shaky ground. But as Eben Moglen told me some years ago, the main reason was that he, representing the FSF in legal matters, preferred to take a softly, softly approach. Another factor was that Moglen wanted to wait for the right case – one that would determine the solidity of the GPL's legal foundations – once and for all.

At least that's the situation in the US. In Germany, Harald Welte has been a tireless defender of the licence, and has already notched up several impressive wins in the courts. Here's another one:

The court hearing in the "Welte vs. Skype Technologies SA" case went pretty well. Initially the court again suggested that the two parties might reach some form of amicable agreement. We indicated that this has been discussed before and we're not interested in settling for anything less than full GPL compliance.

The various arguments by Skype supporting their claim that the GPL is violating German anti-trust legislation as well as further claims aiming at the GPL being invalid or incompatible with German legislation were not further analyzed by the court. The court stated that there was not enough arguments and material brought forward by Skype to support such a claim. And even if there was some truth to that, then Skype would not be able to still claim usage rights under that very same license.

The lawyer representing Skype still continued to argue for a bit into that direction, which resulted one of the judges making up an interesting analogy of something like: "If a publisher wants to publish a book of an author that wants his book only to be published in a green envelope, then that might seem odd to you, but still you will have to do it as long as you want to publish the book and have no other agreement in place".

In the end, the court hinted twice that if it was to judge about the case, Skype would not have very high chances. After a short break, Skype decided to revoke their appeals case and accept the previous judgement of the lower court (Landgericht Muenchen I, the decision was in my favor) as the final judgement. This means that the previous court decision is legally binding to Skype, and we have successfully won what has probably been the most lengthy and time consuming case so far.

There are several important points here. First is that Welte won't settle for compromises or half-solutions: “we're not interested in settling for anything less than full GPL compliance.” This is crucial if the watertight nature of the GPL's case is to be established. There must be no wiggle room that allows opponents to sow seeds of doubt.

Secondly, the court clearly had no doubts about the case: “the court hinted twice that if it was to judge about the case, Skype would not have very high chances.” Again, this hammers home the message that there are no grey areas here: the GNU GPL holds, and if you want to use GPL'd software, you'd jolly well better respect it.

Finally, the fact that the case was against Skype, a household name with plenty of resources to throw around, augurs well for the future. If a well-funded and pugnacious outfit like Skype was unable to find any cracks in the GPL edifice, it's highly unlikely that anyone will, at least in German and probably European courts. FUD merchants will probably cling to hope that US courts might take a different view, but if I were them, I wouldn't be holding my breath: the “built on sand” meme is well and truly moribund these days.

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