ELCE11: Till Jaeger on AVM vs. Cybits
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German lawyer Till Jaeger came to the Embedded Linux Conference Europe to update attendees on the AVM vs. Cybits case that is currently underway in Germany. The case has some potentially serious implications for users of GPL-licensed software, particularly in embedded Linux contexts, so Jaeger (and his client Harald Welte) felt it was important to publicize the details of the case. So important, in fact, that he and Welte are forgoing the usual practice of keeping all of the privileged information (between a lawyer and client) private.
Jaeger has also represented Welte in GPL enforcement cases based on the
work the latter has done with gpl-violations.org. It is
"clear I'm not neutral in this case
", Jaeger said. The case
is important to kernel developers, device makers, and to people using GPL
software, he
said, which is why they are publicizing it.
The dispute
AVM is a company that makes DSL routers called the "FRITZ!Box"—because anything named "Fritz" sells well in Germany, he said—which are based on Linux. These routers have 68% market share in Germany. Cybits offers a product to do internet filtering on the FRITZ!Box with its "Surf-Sitter" software. Surf-Sitter is installed on the router by the user downloading firmware from AVM, running a program that modifies the Linux kernel in the firmware and adding a user-space program to it, then installing the modified firmware onto the router.
AVM did not like that,
Jaeger said, so it asked a court to prevent Cybits from distributing
software that allowed a customer to change any software on the
router. There are some side issues, like the changed firmware not blinking
the lights of the device correctly when online, but the core issue is that
nobody is
allowed to change any software on the router, according to AVM's
arguments. That is a "major attack on users' freedoms under the
GPL
", Jaeger said. It should not be possible to stop sales of
software that changes the firmware on a device like the FRITZ!Box, he said.
In January 2010, a preliminary injunction was issued in a Berlin court that prevented Cybits from selling its software. That is when Welte got involved. In German civil law, it is possible to intervene in a case if you are concerned that your rights are not being upheld. Because Welte licensed his kernel code to both AVM and Cybits (i.e. under the GPL), he was able to intervene with Jaeger as his lawyer. When Cybits appealed the preliminary injunction, the court of appeals overruled most of the original decision, saying that Cybits could continue distributing its software as long as it doesn't cause technical problems with the router (such as the blinking lights problem).
At the same time, though, AVM filed another case in the Berlin regional court to, once again, stop Cybits from shipping its software. AVM won that case by default, because Cybits did not respond to the complaint in a timely manner. According to Jaeger, the company moved and the case fell through the cracks. Cybits then appealed the decision, which was considered at an oral hearing in June.
In that hearing, the details were discussed quite deeply, Jaeger said. The legal question had gotten more complicated because AVM had changed its claims, though the additional claims are not the interesting ones, he said. The main claim of interest is that you can't change any of the software installed on the router, including the GPL-covered software. Jaeger said that he asked AVM if it really meant to make that claim against the GPL software, and AVM affirmed that. He noted that Welte would probably not have intervened without the GPL claim. So far, there has been no decision, and he had hoped there would be one before the talk, but one is due sometime around November 1.
Legal questions
Jaeger's opinion is that if AVM prevails in its case, it will itself lose the right to distribute the kernel as it does on the FRITZ!Box. Because it will be imposing further restrictions than those embodied in the GPL, its license to distribute the GPL-covered parts will be automatically terminated. Because the GPL (version 2 in this case) clearly states that the source code includes the scripts used to control compilation and installation, it is clear that the intent is to enable the user to reinstall modified versions of the software, he said.
One member of the audience wondered whether the GPLv2 was sufficient to require AVM to allow its customers to change the firmware, as that was one of the things that the GPLv3 tried to address. Jaeger said that his interpretation of the GPLv2 was that it was sufficient to the task at hand, at least under German law. Another asked whether the Cybits software was free or proprietary, and he noted that it was the latter, but that there wasn't a GPL question about Surf-Sitter itself because it all ran in user space.
AVM has made several arguments about why the injunction should be upheld: trademark and copyright infringement, as well as unfair competition. One of the main questions that was discussed in the oral hearing in June seems silly to him: is the router a computer? AVM argued that it is not and that they are the only ones who should be allowed to change the firmware on the device. It is not a good argument in Jaeger's opinion, especially because the device is owned by the customer, so it is their property.
AVM claims to get more support calls from Surf-Sitter users than it does from users of unmodified FRITZ!Box routers. That is the basis of the unfair competition claim. It is an argument that the free software community would not like to hear Microsoft or HP make about installing free software on their systems, he said. If there were truly a support issue, AVM could refuse to support modified routers, so there is clearly more to it than that, he said.
The trademark claims are not really an issue in Jaeger's view, but the copyright infringement claims are more interesting. AVM argued that the firmware is a copyrighted work that cannot be changed without its permission, but Jaeger and Welte argued that the firmware is a derivative work of the GPL-covered kernel. AVM then changed its argument to say that the firmware was a collective work, but Jaeger believes that the GPL is intended to handle both derivative and collective works.
AVM is being contradictory in its behavior, he said, by claiming to be licensees of the kernel by releasing the source code as is required by the GPL, but then asserting claims that others cannot change the code. Those assertions constitute a GPL violation in his opinion, so that AVM will lose its rights to distribute the kernel if it prevails.
What's next?
When the court releases its decision, which could be any time now, it may render a judgement or reopen the case because of the additional claims made by AVM. If there is a final decision, either side can appeal, which is a likely outcome, he said. There may be an additional case eventually filed against AVM for violating the GPL. That could come from Welte or others, depending on how things play out, he said.
There were various audience questions about TiVo's technical measures to stop owners from changing the firmware (i.e. Tivoization) in relationship to this case. There are differences, Jaeger said, as AVM is trying to legally bar customers from changing the firmware, rather than using a technical measure (like cryptographically signing the binary as TiVo does). In his opinion, even the technical measure used by TiVo is a violation of the GPLv2, though he recognizes that there is a different interpretation in the US—something that led to some of the wording in the GPLv3. In Germany, Jaeger said, the court can dig into the intent of the license, in addition to its words.
Jaeger believes that what AVM really wants is an "Apple-like
system
" where it controls all of the software that runs on the
device. But that runs afoul of its GPL obligations. AVM didn't write all
of the software that runs on the FRITZ!Box, so it needs to comply with the
licenses of the software it includes. That means allowing customers to
modify the GPL-covered software contained inside, at least in Jaeger's
view. We should know more about the case soon, but, whatever the outcome
from the oral hearing, it seems likely that it will drag on for some time
to come.
[ I'd like to thank the Linux Foundation for assisting with travel
expenses to attend the conferences in Prague. ]
Index entries for this article | |
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Conference | Embedded Linux Conference Europe/2011 |
(Log in to post comments)
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 2, 2011 16:06 UTC (Wed) by xav (guest, #18536) [Link]
If it's because the legal system is in better shape there, I hope it won't be lost when (if ?) diluted into the EU.
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 2, 2011 16:41 UTC (Wed) by stefan_schmidt (guest, #67347) [Link]
I think several facts are related to this. First of all Harald Welte is from Germany and thus gpl-violations.org has all its cases here. Another point is that in other countries like the US such cases are often handled out of court. AFAIK the FSF is doing such GPL violations work in the US as well but tries to handle this outside of the court.
regards
Stefan Schmidt
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 2, 2011 16:42 UTC (Wed) by tialaramex (subscriber, #21167) [Link]
It could be a neutral sign, maybe German companies are just more willing to "take a punt" on going to court rather than settling before hand. Or it could be that Germany has an unusual number of violators.
But mostly I think it's one person, Harald Welte.
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 2, 2011 16:46 UTC (Wed) by stefan_schmidt (guest, #67347) [Link]
Just to make this clear here. Its not like Harald is dragging the companies into court. The large majority of cases gpl-violation has handled are out of court as well.
And this case was already brought in front of the court by AVM and Cybits. He just joined them to make sure his opinion and rights as license holder are reflected in the ruling.
regards
Stefan Schmidt
German rules
Posted Nov 3, 2011 3:42 UTC (Thu) by ncm (guest, #165) [Link]
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 3, 2011 9:33 UTC (Thu) by jschrod (subscriber, #1646) [Link]
But a very big difference between US and Germany is that trials are not as expensive here as in the US. For each law case there's a "standard" lawyer fee that's regulated and that's dependent on the amount of money involved ("streitsumme", didn't find a translation for that). First, the money involved is not as high as in the US, and second, the loser pays that standard fee of the winner's side. A difference might also be that we have a civil law system instead of the Anglo-American common law system, but that's for a lawyer to explain. ;-)
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 4, 2011 13:56 UTC (Fri) by paulj (subscriber, #341) [Link]
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 28, 2011 1:49 UTC (Mon) by stock (guest, #5849) [Link]
Germany is one of the last real innovative countries in the EU.
More fishy behavior from AVM
Posted Nov 2, 2011 18:26 UTC (Wed) by arnd (subscriber, #8866) [Link]
The same company also does doesn't try very hard to actually ship the full source code. If you look the kernel source, you quickly find code likestruct bus_type *platform_bus_type_ptr = &platform_bus_type; EXPORT_SYMBOL(platform_bus_type_ptr);and
struct workqueue_struct *__ti_create_workqueue(const char *name, int singlethread) { return __create_workqueue(name, singlethread, 0 /* nicht frezeable * /, 0 / * keine realtime */); } EXPORT_SYMBOL(__ti_create_workqueue);where they take symbols meant for kernel-internal use (EXPORT_SYMBOL_GPL) and export them to their own binary modules.
More fishy behavior from AVM
Posted Nov 3, 2011 5:25 UTC (Thu) by josh (subscriber, #17465) [Link]
Some companies just don't quite understand the licenses on the software they use, or intend to comply but manage to make some procedural screwups. Those companies need a bit of education and help to come into compliance.
But for cases like this, where AVS has intentionally violated the GPL, and blatantly attempted to deny others the same rights they use themselves ("he asked AVM if it really meant to make that claim against the GPL software, and AVM affirmed that"), I think we'd all be better served by the "smoking crater to serve as an example to others" approach.
Binary Modules
Posted Nov 4, 2011 10:11 UTC (Fri) by simlo (guest, #10866) [Link]
But you can't ship binary modules along with the kernel. The modules are part of the same program and must be under GPL. Kernel + modules is a derivative work and must be GPL as a whole. If they are dynamically or statically linker into the program does not matter.
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 3, 2011 6:10 UTC (Thu) by steffen780 (guest, #68142) [Link]
If anyone from GPL-violations is reading this - please, PLEASE do not follow your usual peaceful approach to GPL enforcement with AVM. In my opinion they seem to think it is appropriate to use the full force of the law against freedom. This possible violation is not a minor technicality, and it is not accidential.
Further, I found the information on the GPL on their website to be extremely confusing. It started by first stating the usual "all rights reserved", and only then (much further down) mentioning that all rights are not in fact reserved. I have previously contacted them about this and about the source code, and whilst they replied with a link to sources they did not respond about the my confusion with their site.
Enough is enough. If they want to repeatedly kick us in the face they do not deserve leniency, but the full force of the law. On By this I mean, assuming a case is won in court, and if I were a kernel copyright holder, I would not reinstate the license. Ever.
Needless to say, nobody I know will be buying anymore AVM hardware. Which is sad, because for the past 15 years I've been singing their praises, and whenever possible chose their products (they were the only ones who made reliably working ISDN cards, and I stuck with them until I found out about this) :(
They even seem to imply that Welte is shady/dodgy/untrustworthy in the German version of their press release on this, although their translator is rather incompetent and translated "seriƶs" to "serious", so it doesn't show up as bad in the English version.
http://www.avm.de/de/News/artikel/2011/avm_zum_cybits_fal...
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 3, 2011 6:21 UTC (Thu) by steffen780 (guest, #68142) [Link]
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 6, 2011 17:07 UTC (Sun) by gezza (subscriber, #40700) [Link]
Agreed that "reputable developments" would be a better translation in this case, and therefore that the implication is that the Cybits development is not reputable.
Wouldn't Cybits also violating GPL?
Posted Nov 3, 2011 9:24 UTC (Thu) by mchehab (subscriber, #41156) [Link]
I don't know Cybits patch, but, if it is modifying the Kernel to export some of the kernel internal structs to be used on userspace, they're likely not using the interfaces intended to be seen on Userspace. So, their userspace stuff may actually be a GPL derivated work.
Wouldn't Cybits also violating GPL?
Posted Nov 3, 2011 12:25 UTC (Thu) by butlerm (subscriber, #13312) [Link]
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 3, 2011 9:40 UTC (Thu) by ekj (guest, #1524) [Link]
That the firmware is copyrighted, would be insufficient, even if they alone held the copyright (they don't, most of it is GPL and held by others) because copyright does not prevent you from making changes to a copy of a work that you legally own.
Copyright does not prevent me from buying a single copy of Harry Potter, then creating a derived work by physically inserting (let's say I use glue) a new chapter at the end.
It -does- prevent me from *distributing* this derived work - but that doesn't seem to be the issue here, so I'm confused.
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 3, 2011 12:32 UTC (Thu) by butlerm (subscriber, #13312) [Link]
AVM vs. Cybits - right to modify one's own router
Posted Nov 3, 2011 20:49 UTC (Thu) by giraffedata (guest, #1954) [Link]
Copyright does not prevent me from buying a single copy of Harry Potter, then creating a derived work by physically inserting (let's say I use glue) a new chapter at the end.
I believe it does, in the US, and according to the article, AVM claims it does in Germany too.
One of the rights in copyright is to prevent others from "preparing derivative works."
While I'm not a copyright lawyer and don't know of any court ruling on a similar thing, I do know of a US case where the right was alleged and the alleged violator didn't protest: People were modifying personally owned VHS copies of the movie Titanic, by physically removing tape, to remove the sex scenes. They wanted to see the movie, but PG-13 was too racy for them. (A detail that probably doesn't matter: they were paying a certain editor, who advertised the service, to do it. It was the editor the copyright owner accused of copyright violation).
AVM vs. Cybits - right to modify one's own router
Posted Nov 4, 2011 11:15 UTC (Fri) by dlang (guest, #313) [Link]
if you try and pass the result off as the work of the original author, that author can sue you for misrepresentation, trademark dilution, etc, but not copyright.
AVM vs. Cybits - right to modify one's own router
Posted Nov 4, 2011 21:30 UTC (Fri) by giraffedata (guest, #1954) [Link]
copyright only affects making copies,
That doesn't appear to be the case. The US copyright statute lists a bunch of things the copyright owner has the exclusive right to do. Making a copy is one. Performing in public is another. "Preparing" a derivative work is another.
Claims reported in the article suggest the same is true of German copyright.
AVM vs. Cybits - right to modify one's own router
Posted Nov 7, 2011 21:31 UTC (Mon) by samroberts (subscriber, #46749) [Link]
http://www.wired.com/entertainment/music/news/2004/12/65959
AVM vs. Cybits - right to modify one's own router
Posted Nov 14, 2011 0:41 UTC (Mon) by DHR (guest, #81356) [Link]
That doesn't seem to be legal trouble. It seems Ebay has an odd takedown policy.
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 14, 2011 0:49 UTC (Mon) by DHR (guest, #81356) [Link]
Actually, there is a part of copyright that just might prevent you from doing this: "moral rights". US copyright was forced to adopt the concept of moral rights when it signed onto the Berne Convention in the 1989. See http://en.wikipedia.org/wiki/Moral_rights_%28copyright_la...
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Dec 25, 2011 0:15 UTC (Sun) by steffen780 (guest, #68142) [Link]
FSFE's background information on the case
Posted Nov 8, 2011 18:44 UTC (Tue) by kirschner (guest, #62102) [Link]
Matthias
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 11, 2011 0:45 UTC (Fri) by pixelpapst (guest, #55301) [Link]
"In its decision, the court rejected the claim by AVM to ban the sale of Cybits software. Both Cybits and other third parties are allowed to make changes to the Fritzbox firmware. Cybits is also not prohibited from selling software which helps the user make those modifications. However, the court did rule in AVM's favour to enjoin Cybit from distributing software which made the router display incorrect or faulty status information. AVM claimed that the use of Cybits software made it appear to the user as if the router had malfunctioned."
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 28, 2011 2:13 UTC (Mon) by stock (guest, #5849) [Link]
In general I'm very fond and impressed with the AVM Fritz.box DSL
routers, doing ADSL, ADSL2+ and VDSL. Here in the Netherlands one of
the largest and most savvy ISP's XS4ALL has all its DSL customers
running with the Fritz-Box 7340, which also does Internet VoIP
telephony. This gear simply rocks.
Two weeks ago i bought a Siemens Gigaset E494IP and wanted to hook it
up to the sip-server of the Fritz-Box through the local LAN, but that
didn't work out well : "Provider registration failed" is what i got
when choosing 'Other Provider' as VoIP profile. In contrast the Twinkle
soft-phone using the sip protocol works right out of the box with the FB
7340 :
http://stokkie.net/siemens/twinkle-met-fritz.box-als-sip-...
To be honest i have some strange feelings about these Siemens Gigaset
IP Phones as it made not even a single attempt to connect to port 5060
of the Fritz.box. See also :
Siemens Gigaset N300A IP
Review door stock, woensdag 23 november 2011
http://tweakers.net/pricewatch/reviews/289755/siemens-gig...
So instead of taking down manufacturers of good hardware like AVM, why
not confront big telco corporations like Siemens with the strange
behavior of their IP telephones ?
Robert
--
Robert M. Stockmann - RHCE
Network Engineer - UNIX/Linux Specialist
crashrecovery.org stock@stokkie.net
ELCE11: Till Jaeger on AVM vs. Cybits
Posted Nov 28, 2011 9:13 UTC (Mon) by anselm (subscriber, #2796) [Link]
Because even manufacturers of good hardware need to respect the GPL?
As far as Siemens is concerned, the only piece of Siemens hardware I ever owned that didn't suck was a vacuum cleaner.