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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.

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