Re: Monsoon settles: complies with GPL, pays undisclosed sum

[Alexander Terekhov]

Geza Giedke wrote:
[...]
> > 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).
> 
> well, I'm not a lawyer and have had no schooling in this matter, but i
> really wonder already in section (b) whether Prof. Hoeren gets the
> GPL: He writes: "he user of open source products gets the license to
> use the product only on the condition that, and as long as, he sticks
> to the rules of the GPL." -- while the GPL of course has *nothing* to
> say about usage: "Activities other than copying, distribution and
> modification are not covered by this License."

Hoeren means "Nutzungsrechten", see

http://bundesrecht.juris.de/urhg/__31.html

Exclusive distribution right *is* part of "Nutzungsrechten" but is
severely limited by the doctrine of exhaustion.

> 
> Later he claims that "once an author has sold a copy of a work, he or
> she loses the exclusive distribution right with respect to that work."
> Of course he can sell the specific copy of software he purchased,
> e.g. the SuSE CD. But this is besides the point since nothing gives
> the purchaser the right to *copy and distribute copies of* the
> software he purchased. Ever wondered why there are no "MS Office for
> 99cent" offers in German software stores?

Now *that* is beside the point, Geza. Microsoft doesn't grant the right
to reproduce (beyond statutory http://dejure.org/gesetze/UrhG/69d.html).

> 
> Point g) reiterates the error made in b): "According to the Bavarian
> judges, if the GPL is legally ineffective, the user does not have a
> license and is thus violating copyright law." A *user* can never be in
> violation of the GPL: a *distributor* can be!

So what did *Skype* do that doesn't fall under "first sale", Geza?

> 
> Now I'm well aware that I haven't and can't cite BGB or other
> law books. But in these matters, the Munich judges are certainly highly
> competent. 

They are utter morons when it comes to "first sale", AFAICS.

SMC made boxes (with software installed).

SMS sold it to Skype (complying with all the GPL requirenments 
regarding providing access to the source code and the text of the 
GPL itself to Skype).

Skype resold boxes to consumers.

Because of "first sale", Skype does not need the copyright owner's 
permission to distribute those copies, and so the act of distributing 
those boxes does not constitute acceptance of the offered license. Skype 
is NOT a party to the GPL regarding code installed in boxes. So how the 
heck can Skype possibly violate the GPL?

Morons, utter morons are those Munich judges.

[...]

> I have no reason at all to believe he's a troll - he may not
> understand the GPL (or I don't or I don't understand him...) but I
> like his stance that "freedom of information" trumps the right to

See also

http://www.usedsoft.com/en/pdf/Rechtsgrundlagen/Gutachten_Prof_Hoeren_Online_Erschoepfung.pdf

Hth.

regards,
alexander.

--
"The revolution might take significantly longer than anticipated."

                                     -- The GNU Monk Harald Welte