GPL case

Harald Welte

2011-06-21

Today was the court hearing at the Berlin district court in the case that I blogged about yesterday.

Nothing really new happened there. AVM still has a number of claims that I consider extremely dangerous to Free Software in the embedded market:

collective/aggregate work
They claim to have some rights on the collective work of their own proprietary components and the GPL licensed components. While that may or may not be true, they also argue that based on such rights, they can legally prevent anyone from installing modified versions of those GPL licensed components onto the device. To me, that would clearly be a further restriction under the GPL, and thus violate the terns of the License.
using rmmod on proprietary kernel module is a modification under copyright law
This is where it starts to get really ridiculous. Both the module unload feature inside the kernel as well as the rmmod command itself are licensed under GPL. Their sole intended purpose is to unload modules from the Linux kernel. AVM now claims that the defendant is violating AVMs copyright because he unloads a proprietary AVM kernel module. Not only is it legally extremely questionable to have binary-only kernel modules at all... but then trying to tell other people they cannot unload such code is outrageous. AVM seems to not understand that they have _sold_ the device to the user. He can stop and unload any program on the device. The device is not owned by or rented by AVM.
copying code from NAND flash to RAM requires explicit permission from the copyright holder
Once again, we have a situation where the user has bought the AVM product. He has obtained a license to the software programs. Under German copyright law there is even no requirement to have a license for 'normal use of the program' as long as the program was obtained lawfully. The CPU on the AVM device (like any CPU in any computer) can only execute code that's accessible to the memory/data bus. Code in NAND flash can never be executed directly, it always has to be copied into RAM before it can be executed. The claim that this operation requires separate permission by the copyright holder is wrong. The copying happens as part of the 'normal use of the program'.

AVM has filed several other claims against Cybits based on trademark and competition law. They go as far as to debating whether a certain LED on the product malfunctions after the user has installed the Cybits software on the product ;). I don't really want to go into details here, but I think it's mainly arguing for the sake of the argument. AVM wants to keep and extend its monopolistic power over those devices, even after they have been sold. That's where the real anti-competitiveness here is... If you look at popular alternative firmware projects like OpenWRT, you will find many vendors and literally hundreds of supported devices. None of them is from AVM. Isn't that striking, considering that AVM is told to have > 60% market share in Germany?

The court has heard arguments from all sides and is now adjourned. All parties are now again going to submit lengthy piles of paper to the court. Within those originating from my lawyers and myself, we will definitely once again outline our position. AVM can do whatever it wants, but it cannot use legal means to disallow the legitimate and intended modification + use of modified versions of GPL licensed code on their devices.

The implications of such a legal win for AVM go way beyond AVM or the DSL router business. They go all over the embedded market, and include NAS devices, Android smartphones, e-book readers, etc. Just think about the implications for OpenWRT, Cyanogenmod, Openinkpot and all the other firmware modification and 'homebrew' projects out there.