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Embedded GPL - An Important Case from Germany
Thursday, June 23 2011 @ 01:00 PM EDT

Law suits involving the interpretation of the GNU General Public License actually tend to be pretty far and few between . . . except in Germany. And that's where we find the most recent case of interest involving Cybits, a company that makes products for protecting children on line, AVM, the maker of the Fritz!Box router, and well known GPL enforcer, Harald Welte, who in this instance is intervening on behalf of Cybits. This suit involves the actions of Cybits which downloads the Fritz!Box software/firmware onto a user's computer, modifies that software, and then reloads it onto the Fritz!Box router. AVM brought an action for copyright infringement, trademark infringement and violation of competition law.

Digging a bit deeper into the facts in this case, we know the following:

  • According to AVM, a portion of the software/firmware which comes with the Fritz!Box is subject to the GPL. AVM maintains that it complies fully with the GPL in making that software available to purchasers of the Fritz!Box. Interestingly, there is nothing on the AVM website that supports these contentions, so it must be on or in the product packaging, if it is anywhere.
  • According to AVM, a portion of the software/firmware that comes with the Fritz!Box is proprietary.
  • According to AVM, one of the things Cybits does is deactive some of the AVM features. Cybits does this by merely turning the features off, not by modifying the code, a point which Cybits contends does not amount to copyright infringement.
  • According to AVM, Cybits does not inform its users that they will be losing some of the AVM-Fritz!Box features if they install Cybits' Surf-Sitter DSL software, thus modifying the end product and damaging the AVM brand and trademark.
  • The Fritz!Box device is clearly not a closed system. It is capable of being updated and modified.
Mr. Welte's interest in this case stems from the fact that he is the original author of some of the GPL-licensed code included in the Fritz!Box, and he believes, through its copyright and trademark assertions and practices, AVM is in violation of the GPL. In January 2010 AVM filed for and obtained an injunction against Cybits. On appeal and with the assistance of Mr. Welte, Cybits was able to get that injunction substantially lifted by order of the court in June 2010, but the principal litigation continues.

An oral hearing was held in the case on Tuesday of this week (June 21), and Mr. Welte reports in his blog that the main AVM contentions are:

  • That the firmware, consisting of both proprietary and GPL code, is a collective/aggregate work subject to an AVM copyright, and that others have no right to modify it. This would be a bit like Red Hat arguing that their version of the Linux operating system, which is a collective work, is not subject to the GPL because Red Hat owns the copyright in that collective work. At least in the U.S. that would not be the case, and it is doubtful it is the case in Germany.
  • The AVM firmware includes both a module unload feature and rmmod, both licensed under the GPL, and AVM asserts that others cannot use that code to modify the firmware. Say what?!
  • AVM contends that copying code from NAND flash to RAM requires explicit permission from the copyright holder, but the device always loads the software from the flash in order to run. This makes little sense.
Essentially, AVM is arguing that you don't own the device you bought, you only purchased a license to use the device in the manner AVM permits. Again, I don't know anything about German law, but that sort of assertion would be laughed out of court in the U.S.

The Free Software Foundation Europe has provided a summary of yesterday's oral hearing, and a separate report from H-Online can be found here.


  


Embedded GPL - An Important Case from Germany | 144 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: nsomos on Thursday, June 23 2011 @ 01:09 PM EDT
Please post any corrections under this thread.
A summary in posts title may be helpful.

[ Reply to This | # ]

Off Topic
Authored by: Kilz on Thursday, June 23 2011 @ 01:32 PM EDT
Please make links the clicky kind.

[ Reply to This | # ]

Embedded GPL - An Important Case from Germany
Authored by: Anonymous on Thursday, June 23 2011 @ 01:48 PM EDT
"that sort of assertion would be laughed out of court in the
U.S." - not necessarily. If I remember correctly, Lexmark made
such an assertion, and it was supported in the courts, over
refilling its ink cartridges. The cartridges have embedded
software, and their EULA does not allow the customer to refill
the cartridge.

[ Reply to This | # ]

"...copying code from NAND flash to RAM..."
Authored by: tiger99 on Thursday, June 23 2011 @ 02:02 PM EDT
I vaguely remember that copying the code in order to run it has been before the EU courts some time ago, probably long before large amounts of NAND flash were practicable. I think the sourced medium at the time was a normal HD, but I can't find anything via Google. Sometimes you need to know the answer before you can ask the right question....

There is some information on how US law would view this here and here, although obviously that is not directly applicable in an EU country.

But the router device must come with at least an implied licence to run the code therein by loading it into RAM, otherwise we would have a very perverse legal situation.

[ Reply to This | # ]

Car analogy
Authored by: IMANAL_TOO on Thursday, June 23 2011 @ 02:44 PM EDT
Analogies are bad, I know. Still...

From the fsfe.org report:
"AVM doesn’t deny that the GNU GPL licensed software installed on the routers may be changed by the users, but maintains the opinion that no altered software may then be reinstalled on the routers. AVM relied on two main arguments:

AVM routers with the software changed by Cybits' software might possibly reach third parties who would have no knowledge of the firmware changes and who may therefore attribute possible router functional changes to AVM even if they were actually caused by the software of Cybits. Therefore, the trademark rights of AVM were infringed."
If I bought a brand new car, say a Ferrari, Mercedes or a BMW, and customized it, I don't think these brands can stop me from doing that, as long as I don't sell it as a non-customized car of theirs. They may not like it, but can't stop it. As long as Cybits doesn't sell it as an AVM they should be ok, I guess. But, I have been wrong before. :)



---
______
IMANAL


.

[ Reply to This | # ]

No first sale principle in software
Authored by: philc on Thursday, June 23 2011 @ 03:15 PM EDT
The EULA pretty much eliminates the first sale principle in software. Look at
what Microsoft accomplished in preventing people from selling unneeded copies of
Windows. The same thing happens in the music industry where you pay for a song
and then can't sell/give it to someone else.


I am very much in favor of the first sale. I buy it, I own it, I can do as I
please with it as long as I don't copy it and give/sell copies to others.


The EULA also absolves the vendor of any responsibility for the quality of the
product. There is no warranty. Everything is licensed "as is" and use
it at your own risk. Your only remedy is to return it for a refund.


The EULA really needs to go away. Vendors need to stand behind their products.
Consumers need to be able to do as they please.

[ Reply to This | # ]

Embedded GPL - An Important Case from Germany
Authored by: Anonymous on Thursday, June 23 2011 @ 03:37 PM EDT
Well, AVG *does* own the copyright in their derived work.

But--it's a derived work, so it can only be prepared under the terms of the GPL.
And if it isn't available under GPL terms, then it cannot be available at
all.

[ Reply to This | # ]

Embedded GPL - An Important Case from Germany
Authored by: Anonymous on Thursday, June 23 2011 @ 04:24 PM EDT
I read about this case, and I would apply some simple logic: AVM doesn't provide source code for their software on request, and AVM doesn't allow modification, therefore it is clear beyond doubt that their router does _not_ contain any software that was legally copied under the GPL license.

Harald Welte says their router contains software that he wrote and licensed under the GPL. If that is the case, and we have just concluded that the router does not contain any _legally_ copied GPL license, the conclusion is that the router contains illegal copies of Harald Welte's software. At that point it is irrelevant that the software could be licensed quite easily, what counts is that the router contains illegally copied software.

So the situation is that A (Welte) wrote software, B (AVM) copied it and distributed it illegally, C (CyBits) wants to do things that would be legal if B had copied the software legally by obeying the proposed license terms and that would be illegal if B had written the software all itself.

I think the outcome of a case Welte vs. AVM would be very clear. I'd be curious what rights AVM has in code that is derived from illegally copied code. But the GPL license is really not irrelevant here. If AVM had stolen proprietary code from Microsoft, then modified it, and then sued Cybits over the code, and Cybits had negotiated a license from Microsoft, that would be the exact same situation.

[ Reply to This | # ]

Newspicks comments
Authored by: bprice on Thursday, June 23 2011 @ 05:22 PM EDT
Please give the URL, lest the newspick vanish from the front page.

---
--Bill. NAL: question the answers, especially mine.

[ Reply to This | # ]

OS vs. Software
Authored by: Anonymous on Thursday, June 23 2011 @ 05:51 PM EDT
I don't know anything about either product but is it possible that the AVM
router contains a collection of GPL'd software products and their own
proprietary software.

If AVM doesn't make any changes to GPL software and don't link with it then
their software can remain proprietary. For example, if I take a DELL computer
with Linux, add my own application and then resell the whole system, you are not
allowed to use my software unless I've licensed it to you.

I don't if this is the case or what portion of the box is copied but without
that knowledge it's hard to say who's right.

[ Reply to This | # ]

Which Version of the GPL?
Authored by: Willu on Thursday, June 23 2011 @ 07:17 PM EDT
Hi,
Just out of interest, which version of the GPL is relevant? If we're
talking about the linux kernel, then this is just version 2 of the GPL, but
it's also possible that there is other code in there that is GPLv3.

If just GPLv2, then I wonder if AVM can legally tivoize their box (as
opposed to cryptographic tivoization which was what Tivo did). Not that
I think this is a good idea, just wondering if it would be legal. The legal
approach would be that they would only license their code for use with the
GPL code they supplied. You'd then have two options, entirely replace the
firmware so you don't need a license to the AVM code, or use the firmware
unmodified so you have a license to the AVM code. If you tried to use a
mixture - modify just the GPL code and use the AVM code - then the license
to the AVM code would go away and you'd be in violation of the AVM
copyright.

EULA's can really suck. Does anyone have a copy of the AVM EULA? Does
it have anything in there about use of AVM code only with unmodified
GPL code?

Hrm - I wonder if that 'legal tivoisation' approach would work with the
GPLv3? V3 requires that you have "installation information", but it
doesn't seem to require that you have the legal right to use it. Yuck.

[ Reply to This | # ]

Embedded GPL - An Important Case from Germany
Authored by: Tolerance on Friday, June 24 2011 @ 12:10 AM EDT
In "Embedded GPL - An Important Case from Germany" Mark says:
"Essentially, AVM is arguing that you don't own the device you bought, you
only purchased a license to use the device in the manner AVM permits. Again, I
don't know anything about German law, but that sort of assertion would be
laughed out of court in the U.S."

Are you sure? It seems to me that was the crux of Sony's defence against the PS3
class action suit. It was also the thrust of their case against Hotz. Sony's
arguments against the Class Action suit haven't been laughed out of court so
far, and Hotz settled with a promise never to do it again.


---
Grumpy old man

[ Reply to This | # ]

Laughed out of court?
Authored by: Pogue Mahone on Friday, June 24 2011 @ 01:55 AM EDT
Mark, you assert that anyone trying to impose after-sale license terms on
something you've bought would get laughed out of court in the US.

How does that sit with the end-user license agreements that come with most
proprietary software that you buy? Many people in the US (at least, that's what
I gather from reading various websites) seem to think they're valid and
enforceable.

I'm only asking, because I live in Germany and there's an EU directive here
(can't be bothered to look it up, it's fairly old) about unfair terms, and
basically it is not possible to impose extra terms and conditions after a sale
has been made. That's why we EUians have no fear of the EULA. So yes, such a
license agreement here should be unenforceable. Unless of course the purchaser
was made aware of it before the sale, but even then many of the conditions in a
EULA should be "unconscionable".

Whether the same would apply if the Fritz boxes were being modified and resold
I cannot tell, but that doesn't seem to be the case here.

Not a lawyer, but I know my rights...

---
delta alpha victor echo at foxtrot echo november dash november echo tango dot
delta echo

I'm not afraid of receiving e-mail from strangers.

[ Reply to This | # ]

Embedded GPL - An Important Case from Germany
Authored by: Anonymous on Saturday, June 25 2011 @ 12:34 AM EDT
Took me about a minute to find the open source download location on the AVM website, so the claim in the article that there is nothing is misdirected.

I went to 'downloads', looked at the 'further downloads' box, and picked 'ftp server', which led here

This has the look of a 'tivo-ization' case to me.

[ Reply to This | # ]

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