AVM violating license of the Linux kernel

on: 2011-06-20

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 *****ren'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).