AVM violating license of the Linux kernel

Linux kernel at centre of battle for control of embedded devices

Berlin, 20th June - Tomorrow on June 21st a legal case will be heard
before the District Court of Berlin which may have enormous consequences
for the way that software is developed and distributed. The adversaries
in the case are the manufacturer and distributor of DSL routers AVM
Computersysteme Vertriebs GmbH (AVM), and Cybits AG (Cybits) which
produces children's web-filtering software. Both companies use the Linux
kernel, which is licensed under the GNU General Public License, version
2 (GNU GPL); a Free Software license permitting everyone to use, study,
share, and improve works which use it.

The case was brought to court by AVM with the aim of preventing Cybits
from changing any parts of the firmware used in AVM's routers, including
the Linux kernel. The Free Software Foundation Europe (FSFE) and
gpl-violations.org consider AVM's action as a broad attack against the
principles of Free Software, and thus against the thousands of
individuals and companies developing, improving and distributing Free
Software.

"I decided to contribute my work to the Linux kernel under the GNU GPL,
and let others benefit from it. I'm happy if companies make a lot of
money with software written by me and thousands of others. But in
return, when they distribute our software I want them to give others the
same rights they received from me", said Harald Welte, founder of
gpl-violations.org and copyright holder of several parts of the Linux
kernel.

This is however exactly what AVM tried to avoid when in 2010 they filed
two actions against Cybits. AVM claimed that when their customers
install Cybits' filtering software on AVM routers it changes the
routers' firmware and consequently infringes on AVM's copyright. In the
opinion of AVM, even changing the Linux kernel components of the
firmware is not allowed. The Court of Appeals of Berlin rejected this
argument in its decision on the request for a preliminary injunction in
September 2010, after Mr. Welte intervened in the case. Now, the
District Court of Berlin will have to decide on the issue again, this
time in the main proceedings.

"This case has far reaching consequences for the future of Free Software
and the GNU GPL. The GNU GPL is a legal license set by the original
authors of the software. These terms are not optional" said Till Jaeger
from JBB Rechtsanwälte who represents Mr. Welte in this case.

If AVM succeeds in forbidding others from exercising the freedoms
explicitly granted by the GNU General Public License terms, it will
directly contravene the legal rights of the original authors of the
programs, who decided that software freedom and cooperation is more
important to them than directly receiving license fees. Moreover, there
are also significant economic and business implications. First, it will
give device manufacturers the chance to veto software from third parties
on their products, resulting in worse products for the user and them
being locked-in to purchasing future products from a particular vendor.
Second, it will give companies like AVM an unfair advantage over their
competitors who are in compliance with the Free Software licenses which
they use. Third, it will threaten the cooperative software development
model, which has been successfully used by many companies worldwide for
three decades.

"AVM is attacking the very foundations of Free Software: They want to
take away freedom from others. We have to act when a company sues others
for executing their right to modify Free Software. AVM's behaviour must
not be tolerated. If they are successful in court it will be disastrous
for the global market for embedded devices, which includes mobile
phones, network hardware, and other Linux based products" says Matthias
Kirschner, FSFE's German Coordinator.

"Ironically, by preventing others from enacting the rights granted by
the GNU GPL, AVM itself is in violation of the license terms. Therefore
they have no right to distribute the software" says Till Jaeger.

FSFE and gpl-violations.org are committed to encouraging the use of Free
Software by companies and developers by making licensing and compliance
as easy as possible. Generally it is considerably easier to comply with
Free Software licenses than with EULAs and other license agreements for
non-Free software. Often it is only necessary to add a copy of the GNU
GPL license text to documentation, and add an offer to provide the
software source code (see FSFE's compliance tips).
     

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