OStatic

As reported in Groklaw and on the plaintiff's blog, Skype has decided to withdraw its appeal against a 2007 German court decision that found it was violating the terms of the GPL. What's interesting here is not the scale of Skype's problems (they were shipping mobile devices without including the required source code, or an offer to send it, with the device), but that things played out in court pretty much as the original GPL designers would have liked.

Skype went into the appeal prepared to argue that the GPL itself was incompatible with German antritrust law and other legislation. A similar theory has already failed to convince a court in the USA, but the German judges didn't even get deeply into that particular question. Instead, they pointed out that if Skype was successful in somehow getting the GPL ruled an invalid license, that they couldn't simultaneously distribute code under the same license.

Understanding this is pretty key to seeing how the GPL works. Either Skype's lawyers didn't get it, or they thought the court wouldn't get it. The basic idea is really pretty simple, though: the GPL is a license from a copyright holder that allows distribution of copyrighted code under certain conditions. If you don't want to accept that license, fine; nobody is making you do anything. But if you don't accept it, you don't have the right to distribute the code.

Given enough hints from the judge, Skype's lawyers must have realized that the alternative they were facing was not the ability to freely distribute the Linux kernel under whatever conditions they liked, but the ability to get sued for multiple copyright violations by hundreds of software authors. No sane lawyer would recommend such a course to their clients.

There may yet be some legal avenue to attack the GPL that hasn't been tested in court. And of course there are a few loopholes - like the "ASP Loophole" that we've  discussed before. But the Skype case confirms, once again, that the clever design of the original GPL accomplishes just what it intends to accomplish - and for that free software proponents can continue to be thankful.

• skype
• gpl