GPL - possible violation - what should I do?

[Georg Jakob]

Hi again,

Think I like this discussion...
;-)

On 22 Mar 2002, Claus Färber kindly wrote:

--snip--
> > 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.)
> 

You *exactly* understood the most important point. Are you allowed to 
request in you license that your licensee has to use a certain license for 
his software or third party software? And what if you have a monopoly in 
your field?

I think we can agree upon the fact that having a monopoly is not illegal 
per se. Neither is a licence requesting certain duties - that's just the 
idea of a contract. The important question is: Why would somebody use such 
clauses?

Microsoft does this to secure its monoply and to (quite explicitly by 
calling it "viral" in the license you mentioned) fight the GPL. So 
Microsoft uses its monopoly to force its customers into a contract, which 
leads to further extension of their monopoly. This is clearly unjust and 
illegal under various national and international Antitrust and Unfair 
Competition Laws.

But the GPL doesn't work that way. It is an offer saying: "I will give you 
not only the right to use my software as you like, I also give you the 
right to change the source and distribute it. But for that, I want to have 
the same rights on your canges and derived works."  

The GPL is a *fair* offer, even when used by a monopolist. afair offer is 
not illegal.
  

> 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.
> 

No it wouldn't be the same, because in the beginning, there was no dominat 
position for apache. Netscape dominated the server market those days.


> 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).
> 

Not everyone, but Linus and other authors explicitly tolerate it, because 
in their opinion, a proprietary driver is better than none. RMS doesn't 
seem to agree with that - but he's not the author.


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

OK, my wording here was to strong and to general, you are right. But the 
economic aspect has to be taken into consideration.


> 
> Clearly no. To quote the European Court of Justice:

I wouldn't say clearly. We have to distinguish a) national and european 
law and b) Antitrust Law (Kartellrecht) and Unfair Competition Law 
(Wettbewerbsrecht).


> | 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)

I would doubt if that can be fully applied to cases where you give away 
things that *theoretically* could be sold. To me it means actually 
collecting a fee or another economic benefit but done by a non-profit 
organisation. 


> 
> 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.
> 

See above. But I'd have to read the case - could you cite it, please?


-- 
kindest regards,         jack at unix.sbg.ac.at
Georg Jakob              http://www.users.sbg.ac.at/~jack
"After explaining the situation to the machine clearly with appropriate
 use of a screwdriver and cleaning up I got the update to behave." (A. Cox)