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FSFE on AVM v. Cybits
Here's a press
release from the Free Software Foundation Europe on an important GPL
case going to trial in Berlin. "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." (See also Harald
Welte's comments on the case.)
(Log in to post comments)
AVM's arguments Posted Jun 20, 2011 15:45 UTC (Mon) by coriordan (guest, #7544) [Link]
FSFE have a background page with interesting stuff:
http://fsfe.org/projects/ftf/avm-gpl-violation.en.html
"AVM justified its position using three arguments. First, they stated that their whole product software must be regarded as an entity under AVM copyright, and that this entity must not be modified. The position Mr Welte took was that the whole product software would in that case be a derivative work according to the GPL, and thus the whole product software should be licensed under the GNU GPL. AVM then switched to a second argument: that the software embedded on its DSL terminals consisted of several parts. According to Mr Welte, AVM could then not prohibit anyone from modifying or distributing the GPL licensed software parts. The final argument by AVM was that the software on their DSL terminals is a composition of several different programs, which, due to the creative process, would be a protected compilation and thus under the copyright of AVM and not affected by the copyleft of the GPL."
AVM's arguments Posted Jun 20, 2011 17:17 UTC (Mon) by josh (subscriber, #17465) [Link]
I seem to recall distributions like Red Hat making the "compilation copyright" argument in the past, not to prevent modification but to prevent redistribution of a full Red Hat distribution (as opposed to the individual RPMs and other components).
#3 is a variant of #1, and still fails Posted Jun 20, 2011 17:47 UTC (Mon) by david.a.wheeler (guest, #72896) [Link] You can claim a "compilation copyright", but since the claimant does NOT have copyright of all the pieces, they still need to obey the rules of the pieces. This same would be true of Microsoft Office; if you build macros on top of Office, and want to distribute a whole system including your macros and Office, you don't get to make arbitrary copies of Microsoft Office; you have to obey the license of Office. GPLv2 actually anticipates the use of compilation copyright, and makes this perfectly clear: "But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it." I'm guessing this lawsuit will be easily dumped, in Linux' favor. These legal claims sound like nonsense to me. Nobody in the proprietary software world will want this claim to work, since it would mean that proprietary software could be copied indefinitely without paying anyone.
AVM's arguments Posted Jun 20, 2011 23:28 UTC (Mon) by Hausvib6 (guest, #70606) [Link]
Compilation copyright, huh... Isn't the argument is simple to defeat with something like: What if I took several best-selling songs from the last 9 years, create an album then sell it? I can see multiple armies of lawyers from the music industry coming to get my money and perhaps my soul.
AVM's arguments Posted Jun 20, 2011 23:39 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
the thing is that they are not arguing that they have the right to do this, they are arguing that you can't modify what they have compiled without their permission.
to use your argument, if they did create a combined album (with properly licensed songs on it) and then you attempted to tweak it (as opposed to creating your own compiliation from scratch), they could prevent you from doing so.
the flaw in their argument is the 'no additional restrictions' clause of the GPL. they can have that compilation copyright, but if they put more restrictions on it than are on the GPL, they then loose the ability to distribute the GPL work (unless they have some other non-GPL license to the work, which does not exist for the kernel)
Court hearing in Berlin Alexanderplatz Posted Jun 21, 2011 16:16 UTC (Tue) by sladen (subscriber, #27402) [Link] In the court hearing earlier today (2011-06-21 11:0012:15) there was one judge, two lay-judges, nine people at the front (including Harald Welte) and twelve people in the gallery. Two other people (possibly other lay judges, but not in gowns) were sat off to one side of the judges observing. Mein Deutsch ist nicht so gut ; I hope that there will be more informed write-ups in due course. The end result from the court session was a move to writing up more paperwork, to follow-up the legal areas raised. If my understanding is correct, a fourth point was introduced in the process, that of creating a monopoly (obstruction of competitors), in which case competition law may also come into play. We'll have to wait and see; my impression is that Mssrs Cybits and Welte were far better technically prepared knowing the field, giving shorter answers and referring to the paperwork only when necessary, where-as the AVM legal team often flicked between pages in order to read-out technical lists of features, or case-law snippets parrot-fashion. There were a few smiles and titters of amusement at points from the highly technical/legal audience in the gallery, but otherwise the atmosphere was calm and concentrated. We'll have to see what pans out.
tivoisation through legal means? Posted Jun 20, 2011 16:45 UTC (Mon) by eMBee (guest, #70889) [Link]
so effectively they are trying to achive through legal means what tivo achived through technical means?
greetings, eMBee.
tivoisation through legal means? Posted Jun 20, 2011 17:54 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
I have multiple Tivo's, all of which have modified software on them.
Tivo did not prevent people from loading new software on the hardware they own.
tivoisation through legal means? Posted Jun 20, 2011 18:06 UTC (Mon) by pflugstad (subscriber, #224) [Link]
But you can't access TiVo's service anymore, right?
tivoisation through legal means? Posted Jun 20, 2011 18:21 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
no, I happily use Tivo's services, plus the additional software that I have installed on the systems.
tivoisation through legal means? Posted Jun 20, 2011 21:58 UTC (Mon) by rahvin (subscriber, #16953) [Link]
Unless Tivo has changed policy you must crack the signed boot-loader system before you can install a modified kernel. The last time I did this it was a very involved process that would be nearly impossible for a non-Linux user. On the other hand, most people keep the stock kernel and crack the root password and install their own processes and software. Though that is not the same as doing the kernel hack.
Tivoisation is called that because Tivo locked the kernel to the hardware. Without cracking the boot loader encryption you can't load a custom kernel and that is what RMS has a problem with and why he called it Tivioisation, in that it's free software but there are software and hardware restrictions that prevent the replacement of the kernel on that system even though it's open source and GPL.
tivoisation through legal means? Posted Jun 20, 2011 22:10 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
yes, I did have to hack the firmware to load my own software, but that's not a major thing even for non-experts to do nowdays (look at 'rooted' or 'jailbroken' phones, there are a lot of them out there, and a lot of them are not owned by computer experts)
or what it's worth, I agree with Ingo and Linus, that availablility of the code is what matters. If Tivo is doing something special in their kernel, what's most important is the ability to see what they did and decide if it's something that benefits other users (and if so modify the upstream kernel). I can get/build other hardware to run the software on. If a particular vendor chooses to lock down their hardware, it is up to me to decide if I want to support that vendor by buying their hardware, or buy their competitors hardware instead.
In the phone world we are seeing this happen. Initially the vendors all went in the direction of locking things down, but now a growing number of them are being pressured to not lock down the bootloader. This isn't because of the license of the software, but because there are enough vocal users that they are getting the message.
forbidding locking down hardware will limit a lot of 'good' uses as well as a lot of 'bad' uses, and I don't see it as being worth it.
tivoisation through legal means? Posted Jun 20, 2011 23:14 UTC (Mon) by neilbrown (subscriber, #359) [Link]
I agree too, and I think this is the key point:
> I don't see it as being worth it.
License choice is really a question of economics - which choice is expected to produce the greatest value. Of course everyone has different metrics for assessing value, and different expectations for the results of a particular choice, so we can expect people to make very different choices as to what they think will produce the most value.
But it really is a question of value, of worth, of economics. Trying to dress it up as a question of morality or ethics or fairness is just deceiving oneself (or possibly attempting to deceive others).
tivoisation through legal means? Posted Jun 20, 2011 23:42 UTC (Mon) by dlang (✭ supporter ✭, #313) [Link]
possibly a better way of putting my overall thoughts on the lockdown issue.
the vendor should have the right to create a locked down device.
but I then have the right to modify any device I have purchased in any way I want, including modifying it to bypass any lockdown the vendor created.
But that's the problem: you don't have such right... Posted Jun 21, 2011 8:19 UTC (Tue) by khim (subscriber, #9252) [Link] but I then have the right to modify any device I have purchased in any way I want, including modifying it to bypass any lockdown the vendor created. But that's the thing: you don't have such right. Not anymore. Your supposed "right" was quite explicitly outlawed decade ago. That's why GPLv3 was needed: this is patch to account for changes in law. Two decades ago GPLv2 was adequate because your position was acceptable. Today it's not enough. P.S. I don't see what's the big hoopla is all about. In a world where "market pressures" made it possible to replace OS there are absolutely no problems with GPLv3 anti-Tivoization clauses and in a world where market didn't work (please don't say that "market always work" because it's just not true) it's important and needed.
But that's the problem: you don't have such right... Posted Jun 21, 2011 18:08 UTC (Tue) by dlang (✭ supporter ✭, #313) [Link]
please provide a link showing the law that outlawed me making modifications to devices that I own, the link you provided does not do that.
But that's the problem: you don't have such right... Posted Jun 22, 2011 1:14 UTC (Wed) by baldridgeec (guest, #55283) [Link]
Google for "Digital Millenium Copyright Act" (abbreviated as "DMCA") and I believe you will find what you're looking for.
While you're at it, look up "DeCSS" and you will find a famous instance of (ab)use of said law.
Also look for "Dimitri Sklyarov" while you're at it. U.S. law doesn't only apply to U.S. citizens and residents, nor only to events which happen in the bounds of the U.S.
But that's the problem: you don't have such right... Posted Jun 22, 2011 1:23 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]
the DMCA is a blow against being able to do what I want with my equipment, but even that's limited to when I'm bypassing restrictions in accessing other people's work (almost exclusively music/movie media files)
the more dangerous things in my opinion are the lawsuits going after people creating mod-chips for game consoles (I really don't understand the logic there)
but if there really was a law passed eliminating the right to modify things that I have purchased (as a general statement), that would be a much bigger issue.
But that's the problem: you don't have such right... Posted Jun 22, 2011 1:37 UTC (Wed) by baldridgeec (guest, #55283) [Link]
So you don't see any possible argument that the way Tivo locks down the firmware is a "prevention method" which is meant to keep you from installing a custom kernel?
Even if I were more optimistic and agreed with you myself, you should note that a court doesn't even have to agree in order for them to be able to make your life hell. They just have to present an argument which is prima facie plausible, and the DMCA gives them that argument. That's where the mod-chip lawsuits are coming from anyway (and ALSO the Sony v. Hotz case, which you would have noticed if you had read the Groklaw link.)
But that's the problem: you don't have such right... Posted Jun 22, 2011 2:09 UTC (Wed) by dlang (✭ supporter ✭, #313) [Link]
they don't need _any_ legitimate reason to make your life living hell if they decide to do so, all they need is money to pay lawyers.
I am familiar with the Hotz case.
if you decide not to take any risks, then you must completely give up interacting with anyone, let alone writing or using software
But that's the problem: you don't have such right... Posted Jun 22, 2011 18:53 UTC (Wed) by Wol (guest, #4433) [Link]
If you don't want them making your life hell, don't live in the US :-)
If somebody tried a stunt like that in the UK they would find (a) they would get a *large* bill from the defendant, and (b) assorted people (probably *including* the lawyers) would find themselves enjoying a short stint at Her Majesty's Pleasure :-)
If prosecuting your client's case means you end up a defendant, I can't imagine many lawyers being prepared to take the money ...
Oh - and we have a case like that going through our courts at the moment. The general consensus seems to be that the lawyer involved is heading for disbarment - that he's committed professional suicide.
Cheers,
Ah! Posted Nov 4, 2011 9:14 UTC (Fri) by renox (subscriber, #23785) [Link]
Hum, my understanding of the infamous libel case in the UK (chiropractors) showed that to be able to defend yourself in UK you need big pockets and waste a lot of your time.
So even though I'm not in the US or in the UK, your "If you don't want them making your life hell, don't live in the US :-)", even with a smiley, is very, very wrong..
FSFE on AVM v. Cybits Posted Jun 20, 2011 20:28 UTC (Mon) by dskoll (subscriber, #1630) [Link] The final argument is nonsensical. The GNU GPL clearly states that if you don't grant the freedoms given under the GPL to recipients of the GPL'd software, then you're not allowed to distribute the GPL'd software. So if AVM "won" that argument, it would instantly find itself prohibited from distibuting its own routers.
FSFE on AVM v. Cybits Posted Jun 21, 2011 5:40 UTC (Tue) by devkev (subscriber, #74096) [Link]
Well, not quite, but close enough. If they "win", then they'll be in breach of their license to use Linux and any other GPL software. So they can distribute their routers, but not with those components. This is mentioned in the FSFE press release:
'"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 [from JBB Rechtsanwälte who represents Mr. Welte in this case].'
I'm sure Harald Welte is well aware that if this suit is upheld, he can use it as the basis for a counter-suit against AVM for violating his copyright on his portions of the kernel.
Sticky Posted Jun 21, 2011 6:17 UTC (Tue) by ncm (subscriber, #165) [Link]
Not only that... once they violate the terms, they have lost the right to distribute the work, forever. It doesn't matter if they start complying; if they ever want to ship again they have to get a new license from the copyright holders, e.g. Harald. Technically, anybody who has code in the core kernel, or in the drivers they use, can make them stop shipping, any time, for any reason, or for no reason. Lacking approval, the violators may be able to sell their assets to somebody else (or back to themselves, under a different corporate shell) and start over.
Given the curmudgeonliness of some kernel coders, it's remarkable that this doesn't happen frequently. I attribute that to curmudgeonly coders' distaste for the courts exceeding their annoyance at software freeloaders.
Sticky Posted Jun 21, 2011 12:21 UTC (Tue) by sce (subscriber, #65433) [Link] Given the curmudgeonliness of some kernel coders, it's remarkable that this doesn't happen frequently.Sounds to me if someone actually did this it would create more FUD than its worth.
FSFE on AVM v. Cybits Posted Jun 21, 2011 17:15 UTC (Tue) by laf0rge (subscriber, #6469) [Link]
Just in case you're interested, there is a (German) report of the court hearing available at http://www.golem.de/1106/84360.html
And i've written about some of the ridiculous claims of AVM in todays blog post at http://laforge.gnumonks.org/weblog/2011/06/21/
I really believe this lawsuit is dangerous to the entire embedded Linux space, if AVM was to succeed.
Update with report from first court hearing Posted Jun 22, 2011 13:15 UTC (Wed) by kirschner (subscriber, #62102) [Link] At FSFE we just published a press release wiht an update on the case. There is also a detailed report about the hearing. Beside that I very much recommend reading Harald Welte's blog entry (linked above).
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