GPL - possible violation - what should I do?

Claus Färber list-fsf-eu-discussion at
Fri Mar 22 09:34:00 UTC 2002

Georg Jakob <jack at> schrieb/wrote:
> 1.) Having a monopoly is perfectly legal. So: Changing a license
> is OK, telling Apple you only will continue support your Office-
> Suite for their OS when they change their default Internet
> Browser (which MS did) is not.

And what about telling software vendors that their plug-ins have
to have a special license to run on your platform? (Note that
Microsoft reportedly tries to do that with .NET.)

Changing the licence was only to get an example. If you prefer,
you can just hypothetically assume that Apache was under the GPL
from the beginning.

I could not take Linux as an example because everyone seems to
agree that writing proprietary software for a GPL-OS is ok
(although I don't see the difference between that and a plug-in
for a web-server, for example).

> 2.) Acting for profit on a market is an essential precondition for
> Antitrust Law to be applied.

Clearly no. To quote the European Court of Justice:

| 67. It will be recalled that for the purposes of Community
| competition law the concept of undertaking encompasses every
| entity engaged in an economic activity regardless of the legal
| status of the entity and the way it is financed. The basic test
| is whether the entity in question is engaged in an activity
| which consists in offering goods and services on a given market
| and which could, at least in principle, be carried out by a
| private actor in order to make profits. (C-475/99)

In the example mentioned, the Court applied anti-trust rules to
the Deutsches Rote Kreuz (German Red Cross), which clearly is a
non-profit organisation (at least approved by the tax office).

All that matters is wheter distributing software is an activity
which could be carried out in order to make profit.

Please note that this does not necessarily apply to the Apache
Foundation, which does write the software, but merely supports the
authors of Apache. It does apply to the Apache authors as a group,
however. Writing Open Soruce software does not excuse you from
competing with other (non-Open Source) software vendors in a fair

If the definition of derieved works in the GPL was wider than what
copyright laws consider a derieved work, the must-be-GPL clause
would no longer be covered by copyright and become anti-
competitive. Fortunately, the GPL does not try to define it. If it
did, it would be a ticking time bomb.

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