In the conflict between Obelix and MobiliX, the
legal response of the lawyers Jaschinski Biere Brexl (JBB)
is online now.
In November 2001 Werner Heuser, owner of the Opens Source
project MobiliX - UniX on Mobile Computers
(http://mobilix.org) was charged by "L�s Editions Albert Ren�",
which is owner of the trademark "Obelix". The charge
aimes on a deletion of the trademark "MobiliX" and
a compensation fee. Also every commercial use of the
name "MobiliX" will be forbidden. Every offense can
be charged with up to 250.000 Euro or as a substitute
with six months prison. Werner Heuser has taken
the lawyers Jaschinski Biere Brexl (JBB)
(http://www.jbb-berlin.de) to represent him in court. His
lawyers had to work out the legal response until
January 21st 2002.
The legal response (PDF, 22 pages in German) is online
(http://mobilix.org/mobilix_asterix.html) now.
The document describes the origin of the names Obelix
(from "obelisk") and MobiliX (from "mobil" and "UniX").
Many wellknown names are used to show how widespread the
suffix "ix" is in the IT business, e.g. often
UniX derivates are named by this scheme. This is
followed by an analysis of the pronounciation and
spelling of the words Obelix and MobiliX, and whether
they can be mistaken from members of the IT business or not.
As a conclusion the charge is considered void.
Since the suffix "ix" is widespread in the IT community, it
seems possible that even more projects will be charged.
This case is very important for the Free Software
community, too. Therefore the lawyers
Jaschinski Biere Brexl (JBB) have agreed
to make the legal response public.
The MobiliX (http://mobilix.org) site
is dedicated to Mobile UniX systems. It leads you to
a lot of useful hands-on information about
installing and running Linux, BSD and other UniXes on laptops,
PDAs and other mobile computer devices. Werner Heuser offers
his Linux-HOWTOs and his book "Linux on the Road" there.
Besides his work for MobiliX he is a Debian GNU/Linux maintainer.
--
|=| Werner Heuser = Keplerstr. 11A = D-10589 Berlin = Germany
|=| <wehe_AT_mobilix.org> T. 0049 - (0)30 - 349 53 86
|=| http://MobiliX.org UniX on Mobile Systems: HOWTOs,Software
|=| http://Xtops.DE Laptops+PDAs pre-installed with UniX
|*| This is no time for phony rhetoric -- Lou Reed
While looking for Eben Moglen's web page in google I stumbled into the
European Business Ethics Network (http://www.eben.org/). I have no idea
of how uch business oriented they are, but it could be interesting to
make them a presentation about Free Software.
They have their annual conference scheduled to August, 29 and 30 in
Brussels. According to the Call For Papers, a paper on Free Software
would fit in it:
http://www.eben.org/Events/EbenAnnuals/2002/CallPapersBrussels.htm
Just a suggestion,
--
Joao Miguel Neves
>From joao(a)silvaneves.org Fri Jan 25 00:35:45 2002
>On Qui, 2002-01-24 at 23:19, Joerg Schilling wrote:
>> >From joao(a)silvaneves.org Thu Jan 24 23:32:34 2002
>> >On Qui, 2002-01-24 at 22:17, Joerg Schilling wrote:
>> If someone abuses your code you may sue this person and will get you righ=
>t in a=20
>> way so the abusing person hast to give you money later (enforced by the c=
>ourt).
>> This is because you cannot enforce a license agreement if not both partie=
>s
>> agreed on it.
>>=20
>(I'm assuming that Germany autorship/copyright law has something in
>common with the USA, Portuguese and Spanish ones. I'm almost convinced
>that's not always so...)
>Authorship law in Portugal defines that you can't modify the work
>protected by copyright unless the author has given you permission to do
>so. This means that they are in one of 2 positions: They didn't asked
>for your permission, and so they've commited a crime, or they've
>accepted the GPL as your permission and, by not obliging to it, they've
>also commited a crime. Obviously I'm not a lawyer, just an engineer who
>has read too many legislation (including some international "copyright"
>treaties).
This looks similar and IO am sure that German and Portuguese copyright
law have more in common than german and USA Copyright.
Of course, there are two aspects of the case. One is the civil acspect of the
case and another is the crimnal aspect. Going only the way of sueing for the
criminal aspect will take many years while starting with the civil case before
will help to get a fast start.
The main problem seems that my lawyer does not see a way to enforce the other
person to publish the modifications.
Jörg
EMail:joerg@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
js(a)cs.tu-berlin.de (uni) If you don't have iso-8859-1
schilling(a)fokus.gmd.de (work) chars I am J"org Schilling
URL: http://www.fokus.gmd.de/usr/schilling ftp://ftp.fokus.gmd.de/pub/unix
Hi all,
one of my GPL programs is abused by a German company and I am going to sue them
soon. I like to report from a talk I had with my lawyer today.
He told me that GPL cannot be enforced in Germany.
He said, that to have a valid contract, there is a need that both
parties aggree in the contract which is not the case for the GPL.
So if the abuser tells you that he never aggreed in GPL and that
he _knows_ that is is using th eprogram in an illegal way, this will
help him in the lawsuit.
My questions:
- Has there been ever a GPL lawsiut?
- Is FSFeurope willing and able to help me and my lawyer?
Jörg
EMail:joerg@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
js(a)cs.tu-berlin.de (uni) If you don't have iso-8859-1
schilling(a)fokus.gmd.de (work) chars I am J"org Schilling
URL: http://www.fokus.gmd.de/usr/schilling ftp://ftp.fokus.gmd.de/pub/unix
>From tapselj0(a)cs.man.ac.uk Fri Jan 25 00:13:13 2002
>> - Is FSFeurope willing and able to help me and my lawyer?
>Have you emailed the EFF yet?
No, do you have an email adress?
Jörg
EMail:joerg@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
js(a)cs.tu-berlin.de (uni) If you don't have iso-8859-1
schilling(a)fokus.gmd.de (work) chars I am J"org Schilling
URL: http://www.fokus.gmd.de/usr/schilling ftp://ftp.fokus.gmd.de/pub/unix
>From nickm(a)cream.org Thu Jan 24 23:36:01 2002
>> one of my GPL programs is abused by a German company and I am going to sue them
>> soon. I like to report from a talk I had with my lawyer today.
>>
>> He told me that GPL cannot be enforced in Germany.
>>
>> He said, that to have a valid contract, there is a need that both
>> parties aggree in the contract which is not the case for the GPL.
>> So if the abuser tells you that he never aggreed in GPL and that
>> he _knows_ that is is using th eprogram in an illegal way, this will
>> help him in the lawsuit.
>The German company is talking utter rubbish. Even if the GPL were
>shown to be invalid in German Contract Law (which is unlikely), this
>would not suddenly cause you to lose your standard copyright - it
>would not magically revert to the public domain! The very best they
>can hope for is the even MORE restrictive general protection that
>copyright affords you.
Sure, in Germany it is impossible to give away "authorship rights".
You will not loose your standard copyright, this is what my lawyer told me.
.... but as I cannot enforce GPL, I cannot force the person to e.g.
publish the part of the new source that has been created by this person.
>Let us assume that, indeed, the contract is somehow "invalid". Well,
>that's fine - they don't use it. Their problem is, it is the ONLY
>contract you are prepared to offer. Even if you were forced to STOP
>offering that contract, this is not forcing you to START offering
>laisez-faire acceptance of a complete breach of your protected
>copyright! I hope you understand the point I'm making, because it is
>obvious and crucial, and if you can make them understand it, they will
>buckle down very quickly.
kI have been told that of course, I can stop this person immediately to
continue to break my license but I am only able to get a finacial compensation
for what this person did illegaly.
Jörg
EMail:joerg@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
js(a)cs.tu-berlin.de (uni) If you don't have iso-8859-1
schilling(a)fokus.gmd.de (work) chars I am J"org Schilling
URL: http://www.fokus.gmd.de/usr/schilling ftp://ftp.fokus.gmd.de/pub/unix
>From joao(a)silvaneves.org Thu Jan 24 23:32:34 2002
>On Qui, 2002-01-24 at 22:17, Joerg Schilling wrote:
>> He said, that to have a valid contract, there is a need that both
>> parties aggree in the contract which is not the case for the GPL.
>> So if the abuser tells you that he never aggreed in GPL and that
>> he _knows_ that is is using th eprogram in an illegal way, this will
>> help him in the lawsuit.
>>=20
>This is a common misunderstanding. GPL is not a contract, it's a
>copyright license. That means that unless the company accepted it they
I know this, but but if the person does not accept the license agreement, then
he is using the code in an illegal way. The Copyright Law (sorry this is
a really bad word, but there is no corrert translation in English available.
To make it easier the German name is "Urheberrecht" and I translate it to
"Authorship right".
If someone abuses your code you may sue this person and will get you right in a
way so the abusing person hast to give you money later (enforced by the court).
This is because you cannot enforce a license agreement if not both parties
agreed on it.
>couldn't modify your code (assuming that Germany has more or less the
>same definition on copyright than the rest of the western world).
Depends.... If you don't count the USA as belonging to the western world
you are right.
>Please give a copy of Eben Moglen's "Enforcing the GPL" articles to your
>lawyer (http://emoglen.law.columbia.edu/). Eben Moglen will, probably,
>be very interested in the case. Contact him (FSF can help there) and try
>to get him and your lawyer in touch.
Let me check this later, it is too late now......
Jörg
EMail:joerg@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
js(a)cs.tu-berlin.de (uni) If you don't have iso-8859-1
schilling(a)fokus.gmd.de (work) chars I am J"org Schilling
URL: http://www.fokus.gmd.de/usr/schilling ftp://ftp.fokus.gmd.de/pub/unix
Hello. Don't forget to mail the us department of justice on this important
matter!
read you soon,
Kim Bruning
(Text Follows)
---------- Forwarded message ----------
Date: Wed, 23 Jan 2002 23:18:42 +0100 (CET)
From: kim bruning <kim(a)bruning.demon.nl>
To: microsoft.atr(a)usdoj.gov
Subject: Microsoft Settlement
Dear sir/madam,
I live in a small village called Wijk en Aalburg in the Netherlands. I am
a software engineer, employed by a small computer company in Delft. Also,
I study Biology in the city of Utrecht.
I am not a United States citizen, so I'm not sure how you will regard what
I have to say. If I only comment on what I see then perhaps my opinions
might still be of some value. I hope you will be able to use them.
Others have commented on many aspects of the settlement. Much of the text
seems reasonable. I see two minor points which might need some
improvement.
Point 1:
--------
Under I.1. "All terms, including royalties [...] reasonable and
non-discriminatory."
I would like to refer you to a discussion on RAND (Reasonable and
non-Discriminatory) licensing as has been proposed for the world wide web
consortium (The organization which sets standards for the world wide web).
http://www.w3.org/TR/2001/WD-patent-policy-20010816/
Note especially objections made by some of the w3c contributors. To wit:
rand is not non-discriminatory. It discriminates directly against Open
Source and Free Software projects. These projects simply cannot use or
pay for such RAND licensing due to their legal structure. The arguments
that could be made here are very similar to those stated in the w3c
discussion. Here are some arguments of my own:
Royalty Free (RF) Licensing has been proposed as an alternative, and
overcomes this weakness.
Why are Free Software and Open Source Software important? There are two
arguments based on reason, and one is based on simple demonstration:
(1) The free software operating system Linux is considered by many to be a
somewhat important competitor to Microsoft. It is distributed under the
GNU general public licence (GPL) which is a distribution license. Allowing
Microsoft to discriminate against such competitor would not be fair. It
could also hardly be called non-discriminatory, of course.
reference: www.gnu.org
(2) As far as I know, original implementations of RFC 791 (Internet
Protocol) and RFC 793 (Transmission Control Protocol) were released under
the university of California's' "Berkeley Software Distribution" License.
This is a free software license. These 2 protocols form the heart of the
current day Internet. The implementation was left Royalty Free, and hence
all parties adopted it. Also, since the original source was open, all
parties could learn from it, and the TCP/IP system was quickly adopted
worldwide. This is very important.
references:
IETF RFCs can be obtained from many sources. Here is one on the world wide
web.:
http://www.ibiblio.org/pub/docs/rfc/rfc791.txthttp://www.ibiblio.org/pub/docs/rfc/rfc793.txt
(3) Quite simply put: The Simple Mail Transfer Protocol(RFC821) is royalty
free, to the best of my knowledge. This protocol is used to transmit
E-mail across the Internet. If it were not for SMTP, and if it were not
for its royalty free status, I would not have been able to send this
message.
http://www.ibiblio.org/pub/docs/rfc/rfc821.txt
A possible solution to the shortcoming in I.1. (and similar problems with
related points under I) would be to allow for Royalty Free licensing of at
very least the data interchange formats used by Microsoft.
As an aside:
Requiring Microsoft to submit their data formats (such as word and excel)
to the International Standards Organization (ISO) might improve the
situation further. Such standards organizations argue that good
standardization has demonstrably improved economic gain, and stimulated
competition between all parties concerned. I think that even Microsoft
might actually gain from such an action in the long run. I see nothing
wrong with this, because such gain would result from fair competition.
Reference:
www.iso.org
Point 2:
--------
Under J it is said that Microsoft may not disclose information about
security systems, and may set almost any requirement when sharing security
information with a security vendor.
I am a programmer, not a certified computing security professional.
However, I have learnt much from such security professionals. I will try
to summarize their point of view as best as I can. Please don't hold any
minor errors or omissions I make against me. For a more comprehensive
discussion of security, you could try looking at the scientific literature
on this subject. Obtaining advice from a Data Encryption Scientist might
be somewhat rewarding.
Open knowledge of algorithms and methods is a requirement for truly strong
security. This seems reasonable to me. After all, if one knows of a
certain weakness, one can compensate for it and prevent people from
exploiting it.
If a hostile element was to be the only person to know a weakness in a
security system, then that person would certainly be able to exploit that
weakness. Further, security systems which are put up for public review can
quickly be assessed for potential weaknesses, and these weaknesses can be
repaired. No such process can be used for systems which are kept secret.
A second slight problem which some people have brought up is that there
might be a weakness here. People might state "security concerns" as an
excuse to sidestep what they are required to do under I in some
situations. In fact this does not seem very hard to do from a technical
perspective.
In short, section J on the whole might have some weaknesses. It might be a
good idea to gain advice from one or more security experts (such as
perhaps a professor teaching about data encryption, or people employed by
a government security agency) to determine if this is indeed the case.
hopefully this is of some use to you,
sincerely,
Kim Bruning,
Anjelierstraat 47,
4261 CK Wijk en Aalburg,
The Netherlands.
Hello,
I appologise if I am sending this to the wrong people.
I am forwarding an email that we (fsf europe) have recieved.
Thank you for your time.
John Tapsell
FSF Europe member
---------- Forwarded Message ----------
Subject: GPL lawsuit in Germany
Date: Thu, 24 Jan 2002 23:17:44 +0100 (MET)
From: Joerg Schilling <schilling(a)fokus.gmd.de>
To: Discussion(a)fsfeurope.org
Hi all,
one of my GPL programs is abused by a German company and I am going to sue
them soon. I like to report from a talk I had with my lawyer today.
He told me that GPL cannot be enforced in Germany.
He said, that to have a valid contract, there is a need that both
parties aggree in the contract which is not the case for the GPL.
So if the abuser tells you that he never aggreed in GPL and that
he _knows_ that is is using th eprogram in an illegal way, this will
help him in the lawsuit.
My questions:
- Has there been ever a GPL lawsiut?
- Is FSFeurope willing and able to help me and my lawyer?
Jörg
EMail:joerg@schily.isdn.cs.tu-berlin.de (home) Jörg Schilling D-13353 Berlin
js(a)cs.tu-berlin.de (uni) If you don't have iso-8859-1
schilling(a)fokus.gmd.de (work) chars I am J"org Schilling
URL: http://www.fokus.gmd.de/usr/schilling
ftp://ftp.fokus.gmd.de/pub/unix
_______________________________________________
Discussion mailing list
Discussion(a)fsfeurope.org
http://mailman.fsfeurope.org/cgi-bin/mailman/listinfo/discussion
-------------------------------------------------------
Dear sir/madam,
I live in a small village called Wijk en Aalburg in the Netherlands. I am
a software engineer, employed by a small computer company in Delft. Also,
I study Biology in the city of Utrecht.
I am not a United States citizen, so I'm not sure how you will regard what
I have to say. If I only comment on what I see then perhaps my opinions
might still be of some value. I hope you will be able to use them.
Others have commented on many aspects of the settlement. Much of the text
seems reasonable. I see two minor points which might need some
improvement.
Point 1:
--------
Under I.1. "All terms, including royalties [...] reasonable and
non-discriminatory."
I would like to refer you to a discussion on RAND (Reasonable and
non-Discriminatory) licensing as has been proposed for the world wide web
consortium (The organization which sets standards for the world wide web).
http://www.w3.org/TR/2001/WD-patent-policy-20010816/
Note especially objections made by some of the w3c contributors. To wit:
rand is not non-discriminatory. It discriminates directly against Open
Source and Free Software projects. These projects simply cannot use or
pay for such RAND licensing due to their legal structure. The arguments
that could be made here are very similar to those stated in the w3c
discussion. Here are some arguments of my own:
Royalty Free (RF) Licensing has been proposed as an alternative, and
overcomes this weakness.
Why are Free Software and Open Source Software important? There are two
arguments based on reason, and one is based on simple demonstration:
(1) The free software operating system Linux is considered by many to be a
somewhat important competitor to Microsoft. It is distributed under the
GNU general public licence (GPL) which is a distribution license. Allowing
Microsoft to discriminate against such competitor would not be fair. It
could also hardly be called non-discriminatory, of course.
reference: www.gnu.org
(2) As far as I know, original implementations of RFC 791 (Internet
Protocol) and RFC 793 (Transmission Control Protocol) were released under
the university of California's' "Berkeley Software Distribution" License.
This is a free software license. These 2 protocols form the heart of the
current day Internet. The implementation was left Royalty Free, and hence
all parties adopted it. Also, since the original source was open, all
parties could learn from it, and the TCP/IP system was quickly adopted
worldwide. This is very important.
references:
IETF RFCs can be obtained from many sources. Here is one on the world wide
web.:
http://www.ibiblio.org/pub/docs/rfc/rfc791.txthttp://www.ibiblio.org/pub/docs/rfc/rfc793.txt
(3) Quite simply put: The Simple Mail Transfer Protocol(RFC821) is royalty
free, to the best of my knowledge. This protocol is used to transmit
E-mail across the Internet. If it were not for SMTP, and if it were not
for its royalty free status, I would not have been able to send this
message.
http://www.ibiblio.org/pub/docs/rfc/rfc821.txt
A possible solution to the shortcoming in I.1. (and similar problems with
related points under I) would be to allow for Royalty Free licensing of at
very least the data interchange formats used by Microsoft.
As an aside:
Requiring Microsoft to submit their data formats (such as word and excel)
to the International Standards Organization (ISO) might improve the
situation further. Such standards organizations argue that good
standardization has demonstrably improved economic gain, and stimulated
competition between all parties concerned. I think that even Microsoft
might actually gain from such an action in the long run. I see nothing
wrong with this, because such gain would result from fair competition.
Reference:
www.iso.org
Point 2:
--------
Under J it is said that Microsoft may not disclose information about
security systems, and may set almost any requirement when sharing security
information with a security vendor.
I am a programmer, not a certified computing security professional.
However, I have learnt much from such security professionals. I will try
to summarize their point of view as best as I can. Please don't hold any
minor errors or omissions I make against me. For a more comprehensive
discussion of security, you could try looking at the scientific literature
on this subject. Obtaining advice from a Data Encryption Scientist might
be somewhat rewarding.
Open knowledge of algorithms and methods is a requirement for truly strong
security. This seems reasonable to me. After all, if one knows of a
certain weakness, one can compensate for it and prevent people from
exploiting it.
If a hostile element was to be the only person to know a weakness in a
security system, then that person would certainly be able to exploit that
weakness. Further, security systems which are put up for public review can
quickly be assessed for potential weaknesses, and these weaknesses can be
repaired. No such process can be used for systems which are kept secret.
A second slight problem which some people have brought up is that there
might be a weakness here. People might state "security concerns" as an
excuse to sidestep what they are required to do under I in some
situations. In fact this does not seem very hard to do from a technical
perspective.
In short, section J on the whole might have some weaknesses. It might be a
good idea to gain advice from one or more security experts (such as
perhaps a professor teaching about data encryption, or people employed by
a government security agency) to determine if this is indeed the case.
hopefully this is of some use to you,
sincerely,
Kim Bruning,
Anjelierstraat 47,
4261 CK Wijk en Aalburg,
The Netherlands.