[lug] Adobe GPL attack in Germany

[rm at mamma.varadinet.de]

On Thu, Jul 05, 2001 at 12:40:36PM -0600, Deva Samartha wrote:
> At 06:39 PM 7/5/2001 +0200, you wrote:
> 
> >This is unfortunately a text that went through several hands ....
> >First of all:
> >
> >  Adobe isn't atacking, it's a Law firm.
> >
> >  This is not an atack ata all against GPL or Open Source.
> 
> Ah - an open source author donates his time and effort to create software 
> for free use and then is forced to deal with a legal bill of $ 2000.- or 
> hire an attorney to get legal advice is no attack?
> 
> What would you call an attack then?

Umm, i actually never claimed that this was not an attack. I just wanted
to mention that at the core of this case there's a trademark issue. As i
see it, it burns down to someone nameing his product with a name very close
to a registered trademark. Not a good idea(tm) in our world of trademarks.
This can happen (and actually happened quite often) to authors of proprietary
software as well. One of the more famous cases: some small dutch (? don't quote
me on this) company has a registered trademark on the word 'explorer' in combination
with computer programs. A few years ago a lawyer started to sue a _lot_ of people
that used the word as part of their program names -- the shareware program
FTPexplorer being one of the more famous ones. And yes, they attacked Microsoft
as well-- afaik that case was settled outside of court.

> 
> >  As a matter of fact, it's not even about software at all.
> 
> I don't follow your train of thought - would the case exist if there would 
> be no software?

If he'd built a car and named it 'clistler' he might get in trouble as well.
Hmm, ever tried to call a soda something that contains the work 'Coke'?
If i recall right there have been a gazillion law suits against companies that
did it.


> 
> If it would be just about the name - why did the attorneys reject Kay-Uwe's 
> offer to change the name?

They didn't. They just did not agree to not bill him for the act.
I'd like to stress that i'm not a lawyer, but i want to point out
that i think the basic idea behind this law is actually pretty consumer
friendly. Uness there's a reasonable price tag on an "Abmahnung" any company
with ill intent could just go on forever misbehaving without any costs
at all. Of course we shouldn't forget that any "victim" of such an act
can just decide to ignore this at all if he/she feels it's unjustified.
If Kai-Uwe thinks that he doesn't violate any trademark he can just ignore
letter (and risk that _Adobe_ might sue him).
BTW, in any such law suit  Adobe would have to proof that the damage done
was really as high as they claim. The numbers mentioned in the "Abmahnung"
tend to be way too high. This is due to the fact that depending on the 
so-called "Streitwert" (claimed damage) the fees for both lawyers and cort
are higher. For such an high claim the 2000 $ are actually rather moderate,
i've gotten much higher ones.


> It's most likely all about $$'s. The lawyers smelling a chance to go after 
> an University, the University getting bothered about a project on one of 
> their servers.

Yes, it probably is. Sorry if this sounds cynical, but that isn't really
new, or? Contacting the university might be considered a smart move, because
the university might have less motivation to stand up and fight. 

> No effect on Open Software? I doubt it and I bet the folks in Seattle are 
> watching.

They do this since years. Same as the nice guys with the apples ...
Actually Apple has a record of sueing everything that comes anywhere
close to what they do. "Look-and-Feel", Aqua-Design, iSomething, Skins ...

> 
> 
> >  The letter sent to Kai-Uwe Sattler is a so-called "Abmahnung".
> 
> Apparently, it was sent to the University?
> 
> >  This is a legal act specific to german law: if someone violates
> >  trade laws ("Wettbewerbsrecht"), for example by putting up wrong
> >  prices in commercials or by using someones _registered_ trademarks
> >  any lawer or consumer organisation can send the violator a so-called
> >  "Abmahnung", basically informing him/her of the fact and threadening
> >  a lawsuit. The person receiving such a letter has the chance to stop
> >  his acts and pay a fee (the ~ 2000 $ mentioned in this case) or ignore
> >  the letter -- in which case he/she might risk to be taken to court.
> 
> It _is_ an unfriendly act if it happens as a first step. A friendly first 
> step would be a phonecall or a letter to stop the offensive behavior. To 
> bother somebody with a $ 2000.- invoice for a letter as introduction is 
> pretty fresh.

Yes, in a perfect world this would be the case (i've seen it actually).
There's someone doing this for a profession, and that person wants the
money.

> The way out is either comply, pay and shut up or get legal advice and find 
> out what your options are.
> 
> They probably intend to sue for copyright infringement, lost profit and 
> damages due to that but since this cannot be applied to GPL-ed software, 
> they may not even have a case and all may be mute, not owing anything to 
> the lawyers. But this can only be determined by person legally educated in 
> this matter. Maybe the $ 2000.- fee is determined by the estimated damage 
> value and that could go down significantly.