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


From: Geza Giedke
Subject: Re: Monsoon settles: complies with GPL, pays undisclosed sum
Date: Sat, 3 Nov 2007 18:14:52 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (Linux/2.6.5-7.287.3-bigsmp (i686))

Alexander Terekhov <address@hidden> wrote:
> Geza Giedke wrote:
> > 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).

right, MS doesn't. But the GPL also grants the right only if and as
long the recipient of the GPL-licend software adheres to the
principles of the GPL. So as far as distribution is concerned, a
GPL-violator is in no better position than a purchaser of MS software.

> > 
> > 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?

first, I'm not sure that there is a "first sale" rule in Germany;
second, since the "Nutzungsrechte" that are passed on when selling a
program are very limited in general (see
http://ig.cs.tu-berlin.de/oldstatic/Think-Ahead.ORG/pdfs/IV-3-KoglinMetzger.pdf)
so I wouldn't be surprised if sale/distribution in breach of the
licence terms would not be among them; especially, since in doubt the
even more restrictive terms of Urheberrecht alone apply.

But even if Skype were in their rights, the fact remains that they
accepted the ruling. It may well be that an additional strength of the
GPL (beyond its legal soundness, which you question) is that it is
(and is generally perceived as) *fair* and that it is in the best
interest of F/OSS users and distributors to be accomodating to the
wishes of the authors of GPL'ed software: after all, they profit from
their work (and the work of the community that is made possible by the
GPL) and hope to continue profiting from future releases.

But in any case, in football we say "Die Wahrheit ist auf'm Platz" and
in this case "truth is in the courtroom" - and the GPL has been
successful where it counted: in negotiations with alleged violators
and in the courtroom.

regards
 Geza

PS: I'm not too much interested in the details of Urheberrecht and
copyright. I'm neither a lawyer nor a programmer, just a happy user of
Free Software. The meaning of the GPL seems to me very straight
forward, except maybe for those who would like to find a way to
circumvent it. The lawyers of all infringers seem to agree (given that
they all settled) and the (German) courts, too. That's good enough for
me for the time being.


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