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Skype's GPL Follies

Another legal challenge to the GPL has ended, at least for the time being.  This time it's courtesy of Skype, in German court, with the kind of legal maneuvers that make you wonder what they were thinking -- although they do conveniently illustrate the nature of some of the knee-jerk arguments against the GPL (and FOSS, too).

The essence of the suit was this: Skype created a Wi-Fi phone for its service, a device that used Linux, and was brought to court for not properly providing the modified source it had used to create the phone.  Skype lodged an appeal, claiming that the GPL violated antitrust laws, and was therefore invalid.

Evidently Skype came to its senses and decided that it was easier and cheaper to just provide the modified source code than to throw money at the lawyers.  The court's take in the original claim was quite matter-of-fact: A license agreement is a license agreement, and you can't say yes to only half of it.  It's all or nothing, and that includes the GPL.

None of Skype's claims of antitrust violation were actually put to the test by the court, although a previous case in the United States claimed that the GPL was essentially a price-fixing racket that made it impossible to sell software.  The court disagreed, stating that, if anything, the GPL, and by extension FOSS, encouraged a healthier, more competitive market for software by providing an incentive to keep prices low.  That said, people still pay good money for software anyway, especially if they feel they're getting their money's worth.

Legal attacks on the GPL seem to revolve around a few basic conceits -- it's unenforceable; it's illegal; it stifles competition.  The one making those arguments is inevitably someone who has something to lose to GPLed or FOSS software, whether it's market share or clout.  Perhaps one also could cobble together an argument that FOSS constitutes dumping or predatory pricing -- that by giving software away for free, you ruin the rest of the market for it.  That's a little like saying I'm ruining the market for good literature if I give away my books for free -- or, as a friend put it, that blogging is predatory pricing against paid journalism.

Obviously, what happens in a German court doesn't set precedent for other countries in a legal fashion.  But the picture's been clear for some time now: if GPLed software is worth using, then the GPL itself is worth adhering to.  And it's not even that hard to do it, either, which is what makes their wriggling on the hook even more perplexing.

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