High-Profile Litigation Over Use of Embedded Open Source Software in Germany

In a press release from today the Free Software Foundation Europe announces the opening of the court proceedings in the litigation between a maker of DSL routers and a maker of filtering software designed to protecting children from objectionable material on the Internet.

Parties to the dispute are AVM Computersysteme, which occupies a significant portion of the market for DSL routers in Germany and Cybits that allows users to install filtering software on AVM’s routers. Such installation involves making certain changes in the original AVM firmware.

The devices that AVM manufactures and sales are supported by open source Linux software that is subject to the GNU GPL license (v.2). AVM sought preventing Cybits from selling its software, to the extent the software causes changes in the Linux-based firmware that comes with the routers. An appellate court in Berlin dismissed AVM’s motion for a preliminary injunction already in September 2010 and the parties now precede litigation on the principal legal issues.

The case received additional attention as gpl-violations.org asked to be added as a party to the litigation in an attempt to join forces with Cybits against AVM’s copyright infringement claims. This organization, dedicated to raising public awareness about infringing use(r)s of GPL licensed software, argues that allowing changes in the Linux kernel software in this case is not only permissible, it is even mandatory, since the GPL license terms so prescribe. In fact, MVM preventing others from modifying GPL software constitutes itself an infringement of the copyrights held by the developers of open source software (in this case, the rights of the Linux kernel developers).

The entire open source community in Europe and major industry players closely watch this legal battle, which should have considerable implications for many actors in the software and consumer electronics markets. The legal question at the center of the dispute – the rights and obligations of device manufacturers that run open source programs under a GPL license – is relevant also outside of Europe. In Jacobsen v. Katzer the Federal Circuit recognized the enforceability of copyleft provisions in software subject to an open license. If Cybits and gpl violations are right, a large number of device makers in Europe and beyond that legally or technically prevent modifications of their firmware might find themselves in the unpleasant position of copyright infringes.

Disclosure: I am affiliated with legal counsel to gpl-violations.org.

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