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114 lines
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<html newsdate="2011-06-20">
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<version>1</version>
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<head>
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<title>AVM violating license of the Linux kernel</title>
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</head>
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<body>
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<h1>AVM violating license of the Linux kernel</h1>
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<h2>Linux kernel at centre of battle for control of embedded devices</h2>
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<p> Berlin, 20th June - Tomorrow on June 21st a legal case
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will be heard before the District Court of Berlin which may have enormous
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consequences for the way that software is developed and distributed. The
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adversaries in the case are the manufacturer and distributor of DSL routers AVM
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Computersysteme Vertriebs GmbH (AVM), and Cybits AG (Cybits) which produces
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children's web-filtering software. Both companies use the Linux kernel, which is licensed
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under the GNU General Public License, version 2 (GNU GPL); a Free Software
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license permitting everyone to use, study, share, and improve works which use it.
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</p>
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<p>
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The case was brought to court by AVM with the aim of preventing Cybits from changing
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any parts of the firmware used in AVM's routers, including the Linux kernel.
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The Free Software Foundation Europe (FSFE) and gpl-violations.org consider
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AVM's action as a broad attack against the principles of Free Software, and thus against the
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thousands of individuals and companies developing, improving and distributing
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Free Software.</p>
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<p>"I decided to contribute my work to the Linux kernel under the GNU GPL, and let others
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benefit from it. I'm happy if companies make a lot of money with software
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written by me and thousands of others. But in return, when they distribute our
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software I want them to give others the same rights they received from me",
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said Harald Welte, founder of gpl-violations.org and copyright holder of several
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parts of the Linux kernel.</p>
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<p>This is however exactly what AVM tried to avoid when in 2010 they filed
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two actions against Cybits. AVM claimed that when their customers install
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Cybits' filtering software on AVM routers it changes the routers' firmware
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and consequently infringes on AVM's copyright. In the opinion of AVM, even
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changing the Linux kernel components of the firmware is not allowed. The Court
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of Appeals of Berlin rejected this argument in its decision on the request for
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a preliminary injunction in September 2010, after Mr. Welte intervened in the
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case. Now, the District Court of Berlin will have to decide on the issue again,
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this time in the main proceedings.</p>
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<p>"This case has far reaching consequences for the future of Free Software
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and the GNU GPL. The GNU GPL is a legal license set by the original authors of
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the software. These terms are not optional" said Till Jaeger from JBB
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Rechtsanwälte who represents Mr. Welte in this case.</p>
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<p>If AVM succeeds in forbidding others from exercising the freedoms explicitly granted by the
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GNU General Public License terms, it will directly contravene the legal rights
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of the original authors of the programs, who decided that software freedom and
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cooperation is more important to them than directly receiving license fees. Moreover,
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there are also significant economic and business implications. First, it will
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give device manufacturers the chance to veto software from third parties on
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their products, resulting in worse products for the user and them being
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locked-in to purchasing future products from a particular vendor.
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Second, it will give companies like AVM an unfair advantage over their
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competitors who are in compliance with the Free Software licenses which they use.
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Third, it will threaten the cooperative software development model,
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which has been successfully used by many companies worldwide for three decades.</p>
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<p>"AVM is attacking the very foundations of Free Software: They want to take away
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freedom from others. We have to act when a company sues others for
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executing their right to modify Free Software. AVM's behaviour must not be
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tolerated. If they are successful in court it will be disastrous for the
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global market for embedded devices, which includes mobile phones, network
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hardware, and other Linux based products" says Matthias Kirschner, FSFE's
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German Coordinator.</p>
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<p>"Ironically, by preventing others from enacting the rights granted by the GNU GPL,
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AVM itself is in violation of the license terms. Therefore they have no right
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to distribute the software" says Till Jaeger.</p>
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<p>FSFE and gpl-violations.org are committed to encouraging the use of Free
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Software by companies and developers by making licensing and compliance as easy
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as possible. Generally it is considerably easier to comply with Free Software licenses
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than with EULAs and other license agreements for non-Free software. Often it is
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only necessary to add a copy of the GNU GPL license text to documentation, and
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add an offer to provide the software source code (see <a
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href="/activities/ftf/useful-tips-for-vendors.html">FSFE's compliance
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tips</a>).</p>
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<ul>
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<li><strong><a href="/activities/avm-gpl-violation/avm-gpl-violation.html">Link to Background Information</a></strong></li>
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<li><a href="https://download.fsfe.org/legal/documents/kg-avm-vs-cybits.pdf">Court decision 2nd instance (pdf, German)</a></li>
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<li><a href="/activities/ftf/avm-nebenintervention.pdf">Intervention by Harald Welte (pdf, German)</a></li>
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<li><a href="/activities/ftf/ftf.html">FSFE's legal page</a></li>
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<li><a href="/activities/ftf/documentation.html">FSFE's legal team maintains a collection of documentation on Free Software Legal and Licensing topics. It also produces guides and handbooks.</a></li>
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<li><a href="http://www.gnu.org/licenses/gpl-faq.html">Frequently Asked Questions about the GNU Licenses</a></li>
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<li><a href="http://www.gnu.org/licenses/old-licenses/gpl-2.0.html">GNU GPL version 2</a> and <a href="http://www.gnu.org/licenses/old-licenses/gpl-2.0-translations.html">unofficial translations</a></li>
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</ul>
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</body>
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