Thursday, September 28, 2006

validity of GPL upheld in German court

District Court in Frankfurt-on-the-Main has for the first time confirmed the validity of the GNU General Public License (GPL) within the framework of leagal proceedings that included a hearing of evidence. Harald Welte, co-developer of the netfilter firewall code in the Linux kernel and founder of the project gpl-violations had filed a lawsuit against the hardware manufacturer D-Link. The court's opinion(in German) (google translation of the news article is here.) and the details of the ruling can now open for public. Albeit it is in German.
Welte said in a statement published at that a D-Link lawyer's statement could be translated as "Regardless of the repeatedly-quoted judgment of the district court of Munich I, we do not consider the GPL as legally binding."
Now, the German court has found otherwise.
As the District Court in Munich had done in 2004 when upholding a temporary injunction against the router manufacturer Sitecom, the judges in Frankfurt-on-the-Main also confirmed the fundamental validity of the GPL: "In particular, the provisions of the GPL cannot be read as a relinquishing of copyright or copyright-law legal positions," the judges wrote in their opinion. The court explicitly confirmed as valid paragraph 4 of the license, which prohibits distribution of any kind in the event of any GPL clause being violated. D-Link had therefore did not have the rights to market the GPL-licensed software without abiding by the GPL license, while Mr. Welte for his part is entitled to send the warning notices and state his claims for reimbursement.
D-Link, which already back in 2004 had had a run-in about a router with, argued that the GPL violated antitrust law because it featured a price fixing provision and imposed upon the licensee conditions affecting his/her/its contracts with third parties. These arguments the judges found to be irrelevant: If the GPL as a whole violated antitrust law, they observed, then any right of use to GPL-protected software would be null and void.
finding that D-Link is not entitled to dismiss the GPL's legality on the one hand while at the same time enjoying the use of code licensed under it, a practice it reportedly termed "expropriation of the author," according to Heise.

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