Battle lines drawn in dispute between AVM, Cybits and FSFE

by Stefan Krempl

The hearing into the action brought by FritzBox vendor AVM against Cybits revolved in part around the question of whether a router comprises a computer on which additional software can be installed and around the extent to which the GPL applies.

At the principal proceedings at the Berlin regional court, AVM claimed that Cybits, which makes products for protecting children online, was in breach of copyright, trademark and competition law. The company pointed to extensive "reworking" of its own product, consisting of a combination of hardware and firmware. Cybits' Surf-Sitter DSL software downloads the FritzBox software onto the user's computer, modifies it and then reinstalls it on the FritzBox.

The presiding judge started by querying AVM's claim for breach of copyright in view of its failure to precisely specify the software components affected despite the length of time for which the dispute has been dragging on. AVM's lawyers referred the judge to a newly submitted document which detailed "individual lines of code" for which it claimed the copyright had been breached, none of which, according to the document, were open source. The debate was not, according to AVM's lawyers, about components which might be subject to the terms of the GPL. The issue was code which had been "developed entirely in-house", some of which was no longer called or had been removed. In addition, the lawyers claimed that unauthorised downloading of other components had taken place.

During the proceedings, the court also clarified the issue of whether the alleged copyright infringement was limited to a single program or covered multiple programs. AVM originally referred to a collection of copyrighted materials, but has now dropped this claim. Counsel for Cybits argued that if it were assumed that the "firmware consists of a single software program", this program would be subject to the GPL and AVM's accusations could be dismissed out of hand. By contrast, if the firmware was considered as a collection of works, it became hard to understand what exactly was supposed to be subject to copyright protection. Failure to call individual components could not, he argued, be interpreted as "reworking", particularly as this would fall within the scope of the "intended use of the software", with no re-engineering having taken place.

AVM stated that it regards the components included in the firmware as individual programs, usage rights to which could be separately infringed. Surf-Sitter loads two programs from the storage medium into FritzBox's memory and AVM believes that this process represents a 'copying process requiring active consent'. The source code for open source components of the firmware is, according to AVM, provided in accordance with the GPL and meets all its core requirements. The company stated that what is licensed under the GPL is provided to users "without limitation". AVM's representative noted that anyone was at liberty to use the source code of open source components, before adding, "but not on our products."

With this the discussion found itself entering the realms of trademark law. One of AVM's legal team referred to a German appeal court ruling on SIM locks, which found that the law had been infringed if an item had been modified but the product still carried the original brand name. In this case the "pure effect" was deemed to be the deciding factor. Cybits argued that the current case was not comparable, as customers purchasing Surf-Sitter were not simply going to forget that they had installed additional software on their routers.

Till Jaeger, representing kernel programmer Harald Welte, who is participating in the case on behalf of Cybits as an 'intervener' (roughly equivalent to US Intervention law), and indirectly as a representative of the Free Software Foundation Europe (FSFE), argued that the broadband router was "not a closed system to which nothing else may be added". It is, he argued, a mini computer capable of running many different services and programs. Jäger pointed out that the consequences for the IT field if trademark law could be used to prevent installation of additional software would be catastrophic. Taken to its logical conclusion, this would mean that a user could no longer install software onto a standard PC. The GPL, he argued, requires published source code to be permitted to be re-implemented on an open source product. The FSFE thus accused AVM of being in breach of licensing conditions.

AVM also noted that after installing Cybits' filter software, it was no longer possible to use IPTV with T-Home Entertain or secure virtual private networks (VPN). The judge enquired as to whether migrating Surf-Sitter to the PC would represent a mutually acceptable solution. Cybits opined that the router approach offered major advantages for home networks to which multiple devices were connected.

After the hearing, a spokesman for AVM told the H's associates at heise Open that AVM was not trying to bring into dispute the rights granted to customers by the GPL. AVM had, he told us, always conformed to the terms of the GPL and was rooted in the open source community. The dispute was, he insisted, about competition, copyright and trademark issues. According to AVM's spokesman, Cybits' software not only removes the AVM firewall and child protection features without making this clear to the user in the user interface, it also means that IPTV with T-Home Entertain and VPN no longer work. The user interface continues, however, to indicate that the original AVM firmware is running on the device. Customers who have bought a FritzBox rightly expect to be able to use a functioning product – for which reason, he told us, AVM was unable to tolerate such major modifications to the device.