Have the Courts Upheld the GPL?

Summary

Have
The Courts Upheld The GPL?

The
GNUⁱ
General Public License, or GNU Public License (GPL), is a software
license which grants users freedom to copy, freedom to modify, and
freedom to redistribute software as they please, so long as they keep
the software “free” under the same license. It is at the
core of the “free software movement”, whose believers
espouse that software, like science, best serves society by being
kept free from patents, trade secrets or copyrights.

The
purpose of this inquiry was to determine if the courts have upheld
the GPL, the so-called “copyleft” license. The answer, in
short, is a resounding yes. Courts have enforced the duties of the
GPL both domestically and abroad. Additionally, the license has
weathered attacks in the form of anti-trust claims.

This
paper details the following: There is an overview of the GPL, and an
accounting for the major parties enforcing it. There is then a
summary of major cases, both international and domestic.

The GNU General Public License

The
GNU General Public License (GPL), is used for distributing free
software. Most prominently, the GPL is the license of Linux operating
systems. The GPL is maintained by the Free Software Foundation (FSF),
a not-for profit organization with “a worldwide mission to
promote computer user freedom and to defend the rights of all
software users.” Version 1 was published in 1989. The latest
version is GPL version 3, published June 2007.

The
free software movement (including the FSF) has a limited definition
of what is “free software”. As they say, “think of
free speech, not free beer.” The following is from the FSF
website:

“Free software is
software that gives you the user the freedom to share, study and
modify it. We call this free software because the user is free.

To use free software is to
make a political and ethical choice asserting the right to learn, and
share what we learn with others. Free software has become the
foundation of a learning society where we share our knowledge in a
way that others can build upon and enjoy.

Currently, many people use
proprietary software that denies users these freedoms and benefits.
If we make a copy and give it to a friend, if we try to figure out
how the program works, if we put a copy on more than one of our own
computers in our own home, we could be caught and fined or put in
jail. That’s what’s in the fine print of the license
agreement you accept when using proprietary software.”

"Software" is any executable program that
functions on a user's computer. "Source code" is the "plain
language" code (usually a programming language, such as C++,
Java or Perl) the programmer used to create the software. Proprietary
software is distributed with only the executable program. The user is
able to run the program, but cannot see the source code.

The GPL license varies from commercial licenses in the
rights and duties it assigns. The user's rights, under the GPL,
include the following: The user has the right to modify the software.
The user is allowed to make copies and re-distribute them. The user
is allowed to sell copies. (There is no limit to what the user may
charge.) The user is entitled to these rights without restrictions
(e.g. advertising inhibitions on usage are not allowed).

Recently, Version 3 of the GPL added the user's right to
any information needed to modify the software. This was added to
prevent “Tivoization”, i.e. products being distributed
with GPL software that has been locked from changes through
compatibility issues. Early TiVo systems used GPL software, which
shipped with the source code. However, the Tivo hardware prevented
modified versions of software from running on it, thus rendering user
changes unworkable. (Hence, the term “Tivoization”.)

The GPL also grants rights to third parties: In GPL
version 2 and above, any third party who makes a written request for
the source code of the software is entitled to it.

The user has duties under the GPL. All GPL software must
be distributed with the source code. If modified software is
re-distributed, it must be under GPL. The source code for the new
software must be distributed with it. All improvements must be
released as GPL. Modified versions are not allowed to be proprietary.
And, if a program outputs part of itself (i.e. if it is a program
which creates programs), the output software must be licensed under
the GPL.

The law naturally assigns copyrights for modified
sections of code to their author. The author owns these copyrights
unless they assign or disclaim them. But, distributing under the GPL
effectively places the software in the public domain. So, by using
the GPL, the author may seem to disclaim their copyrights. However,
free software advocates encourage developers to register their
copyrights to be in a position to defend the software as free.

Several not-for-profit groups have undertaken to enforce
the license for social reasons. One group is the aforementioned FSF.
FSF founder Richard Stallman was the original author of the GPL. The
FSF is the copyright owner for GNU and other core components of the
Linux operating systems. In an effort to be in the best position to
enforce the GPL, the FSF asks developers to voluntarily assign
copyrights of modified FSF software back to the FSF. Another
advocacy group is gpl-violations.org. Founded by Harold Welt,
gpl-violations.org is a private non-profit group that litigates
reported violations of the GPL. Finally, the Software Freedom Law
Center (SFLC) is a private not-for-profit foundation started by Eben
Moglen, Law professor at Columbia University, and Daniel B. Ravicher,
its Legal Director.

In technical writing, the term “GPL” is used
as a noun for the license, as a verb describing distribution, and as
an adjective for software licensed by the GPL.

History of GPL decisions.

Early cases: German Courts uphold GPL, MySQL
injunction, and US settlements.

The first major GPL case to have judgment issued was at
a District Court in Munich, Germany in 2004.

The plaintiff was the developer of Netfilters/Iptables,
a GPL licensed software. The defendant was a German subsidiary of the
Dutch company Sitecom. Sitecom produced a Wireless network Broadband
Router, model WL-122, distributed with pre-loaded software, including
Netfilters/Iptables. The routers did not ship with source code.
Plaintiff sued for an injunction, 100,000Eu, and attorney’s
fees. The court issued the injunction. The defendant appealed. Upon
hearing, the court found for the plaintiff on May 19, 2004.

The first two widely publicized U.S. cases involving the
GPL settled out of court.

In 2002, Progress Software Corporation v. MySQL AB was
filed in US District Court in Massachusetts. Progress Software had an
agreement to non-exclusively distribute MySQL, a GPL database. Part
of their agreement was that all distribution was to be GPL. In an
early release, Progress distributed MySQL along with Gemini, a
non-GPL package. They released source code for MySQL, but not for
Gemini. MySQL filed the complaint, and moved for a preliminary
injunction, which the court granted. (Progress was not to use the
MySQL mark on any of its products or websites). However, the court
did not rule on whether Gemini was a derivative work or an
independent work under the GPL. Judge Patti Saris stated that, by the
time of the ruling, it was known that Progress had promised to
distribute Gemini under GPL, including its source code.

The second case was in Michigan in 2004. The complaint,
in Drew Technologies, Inc. v. Society of Automotive Engineers (SAE),
pertained to a software package written by Drew Technologies and
distributed under the GPL. The SAE claimed a copyright on the
software, since its operations were based on information contained
within their standards. SAE then attempted to charge Drew
Technologies for usage of the software. When the SAE begin
distributing the software and attempted to charge Drew Technologies
usage fees, Drew filed a complaint alleging violation of the GPL and
damages. The case settled, with SAE paying Drew $75,000. (Drew
Technologies, in turn, donated half of the money to the SAE as a
charitable contribution.) Free software advocates claimed that by not
immediately granting the copyright to the SAE, the court implied
recognition of the GPL.

German Cases: gpl-violations.org and D-Link.

GPL-violations.org filed against hardware manufacturer
D-link in a District Court in Frankfurt, Germany, in late 2006.
Plaintiff asked for judgment in support of the GPL requirements and
for reimbursement for out of court enforcement expenses. D-Link
Germany GmbH (D-link) distributed a network storage device that used
a Linux-based operating system. It included the Linux kernel and
other GPL software. The device was distributed without the source
code. D-link signed a cease and desist statement, but refused to pay
the reimbursements, arguing that the GPL was not legally binding.
Gpl-violations.org argued that the license was binding based on the
earlier Munich court decision. In its decision, the Frankfurt
District Court held that gpl-violations.org indeed had rights to the
source code as a third party under the GPL, and ordered D-link to
reimburse expenses for purchasing, re-engineering, and out of court
legal expenses associated with enforcement. A reduced amount were
awarded to gpl-violations.org, as the court considered their asking
amount too high.

US Court of Appeals: Daniel Wallace v. IBM et.all.

In May of 2005, a case filed in the US courts gained an
appellate decision regarding the GPL.

Daniel Wallace filed a complaint in US District Court in
Southern Indiana against IBM, Novell, Red Hat Software, Inc, and the
FSF. Wallace alleged the defendants had conspired in “a
copyright licensing scheme employing the GNU general public license
to fix the prices of computer programs." Wallace claimed that
setting the prices of operating systems to $0 excluded new
competitors from entering the field. The defendants moved for
dismissal, which the District Court granted, noting that Wallace had
not suffered antitrust injury. Wallace appealed, and the US Court of
Appeals, Seventh Circuit, heard the case.

For the Court of Appeals, the issue was whether the GPL
violates federal antitrust law. The court upheld the District Court's
dismissal. In their holding, they reasoned that since the GPL ensures
the software will remain free forever, it couldn’t be used for
antitrust injury. Predatory pricing occurs in three stages: low
prices, exit of producers that cannot make a profit, and monopoly
pricing. Since the GPL set prices to $0 forever, it cannot be used
for monopoly pricing.

German Cases: gpl-violations.org cases: Skype, and
the Skype Appeal.

In July 2007, gpl-violations.org filed against Skype in
German District Court. The Skype WSKP100 phone was sold with GPL
software, without giving users access to the source code. The court
found for gpl-violations.org, and Skype agreed to include a flier in
the phone package with a web link to the source code.
Gpl-violations.org did not accept the flier as compliance to the GPL.
Skype appealed the decision to the German Appellate courts, based on
German anti-trust laws. (The argument was similar to the Wallace
case.) The Appellate Court dismissed Skype’s appeal in 2008.
Skype ultimately reached an agreement for GPL compliance with
gpl-violations.org.

US Enforcement: SFLC and Busybox

The Software Freedom Legal Center (SFLC) has
successfully filed and settled a number of GPL violation inquiries.
They represent the program BusyBox, originally written by Erik
Anderson and Rob Landley. BusyBox is a package of programs that are
core to the Linux operating system. BusyBox is contained by nearly
every usable version of Linux, from simple cell phone firmware to
complicated servers operating systems.

The SFLC has initiated lawsuits in three rounds against
companies distributing BusyBox without source code. All suits have
been filed in the US District Court for the Southern District of New
York.

In September 2007, the SFLC filed Erik Anderson and Rob
Landley v. Monsoon Media, a manufacturer of mobile devices and
consumer electronics. The complaint accused Monsoon Multimedia of
distributing BusyBox on several products without source code. The
case was settled in October 2007. Monsoon announced they would come
into compliance with the GPL and would ensure future compliance. An
undisclosed financial settlement was also included.

In November 2007, the SFLC filed against Xterasys
Corporation. Xterasys Settled out of court. Xterasys agreed to GPL
compliance in its products, and to an undisclosed financial
settlement. The SFLC filed against High Gain Antennas, LLC. High Gain
Antennas settled out of court in a similar agreement.

In December 2007, the SFLC filed Erik Anderson and Rob
Landley v. Verizon. Verizon, and their vendor, Actiontec Electronics,
settled out of court in a similar agreement.

In June 2008, the SFLC filed Erik Anderson and Rob
Landley v. Bell Microproducts Inc and Erik Anderson and Rob Landley
v. Super Micro Computer, Inc. In July 2008, the SFLC filed Erik
Anderson and Rob Landley v. Extreme Action Networks, Inc. The Bell
Microproducts case is settled. The other two cases are currently
unresolved.

Sources

1.
Articles:

Bruce
Bryfield, "Settlement Reached in Busybox-Monsoon GPL Case",
Linux.com, http://www.linux.com/feature/120629, Accessed 12-3-08

Drew
Wilson, "Skype Violated the GPL - German Appeals Court",
ZeroPad.com,
http://www.zeropaid.com/news/9485/Skype+Violated+the+GPL+-+German+Appeals+Court,
Accessed 12-3-08

Enterprise
OpenSource magazine, "Wallace's Anti-GPL Suite Looses Again",
Enterprise OpenSource magazine,
http://opensource.sys-con.com/node/224798, Accessed 12-3-08

Free
Software Foundation, "The GPL tested in US courts - Wallace Vs
FSF", Free Software Foundation,
http://www.fsf.org/news/wallace-vs-fsf, Accessed 12-3-08

gpl-violations.org,
"About the gpl-violations.org project", gpl-violations.org,
http://gpl-violations.org/about.html#whois, Accessed 12-3-08

gpl-violations.org,
"Gpl-violations.org project prevails in court case on GPL
violation by D-Link", gpl-violations.org,
http://svn.gnumonks.org/trunk/gpl-violations.org/homepage/xml/news/20060922-dlink-judgement_frankfurt.xml

Accessed
12-3-08

Laura
A Majerus, FENWICK & WEST LLP, "Court Evaluates Meaning of
"Derivitive Work" in an Open Source Liscence",
http://library.findlaw.com/2003/Jun/16/132811.html, Accessed 12-3-08

Peter
Judge, "Skype agrees to obey GPL", ZDNet.co.uk,
http://news.zdnet.co.uk/software/0,1000000121,39413764,00.htm,
Accessed 12-3-08

Peter
Judge, "German court convicts Skype of GPL breach",
ZDNet.co.uk,
http://news.zdnet.co.uk/software/0,1000000121,39288211,00.htm?r=1,
Accessed 12-3-08

Software
Freedom Legal Center, "BusyBox Developers and Xterasys
Corporation agree to settle GPL lawsuit", Software Freedom Legal
Center Press Release,
http://www.softwarefreedom.org/news/2007/dec/17/busybox-xterasys-settlement/,
Accessed 12-3-08

Software
Freedom Legal Center, "BusyBox Developers and High-Gain Antennas
Agree to Dismiss GPL Lawsuit", Software Freedom Legal Center
Press Release,
http://www.softwarefreedom.org/news/2008/mar/06/busybox-hga/,
Accessed 12-3-08

Software
Freedom Legal Center, "Verizon Settles Open Source Software
Lawsuit", Paul McDougal, InformationWeek.com,

http://www.informationweek.com/news/software/linux/showArticle.jhtml?articleID=206904096,
Accessed 12-3-08

2.
Complaints:

"Complaint",
United States District Court Southern District Of New York,"Erik
Andersen And Rob Landley V. Monsoon Multimedia, Inc",
Http://Www.Softwarefreedom.Org/News/2007/Sep/20/Busybox/Complaint.Pdf

3.
Court Opinions:

United
States Court Of Appeals For The Seventh Circuit, "Wallace V.
International Business Machines Corporation; Red Hat, Inc.; And
Novell, Inc.", No. 1:05-Cv-678 Rly-Vss,
Http://Www.Internetcases.Com/Library/Cases/2006-11-09_Wallace_V_Ibm.Pdf

United
States District Court District Of Massachusetts, "Progress
Software Corporation, Et Al., V. Mysql Ab, Et Al.", Civil Action
No. 01-11031-Pbs,
Http://Pacer.Mad.Uscourts.Gov/Dc/Opinions/Saris/Pdf/Progress%20software.Pdf

6th
Civil Panel Of The District Court Of Frankfurt Am Main, "Harald
Welte Vs.Deutschland Gmbh", Docket Number 2-6 0 224/06,
Http://Www.Jbb.De/Judgment_Dc_Frankfurt_Gpl.Pdf

i
GNU is pronounced “ga-new”. The letters of GNU are a
recursive acronym. GNU stands for GNU’s Not Unix, where
the G stands for GNU, which stands for GNU’s Not Unix, where
the G stands for GNU, which stands for GNU’s Not Unix…..
you get the idea.

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