Verdict in the case of AVM vs. Cybits confirmed the view of FSFE

on: 2011-12-01

In the dispute between the companies AVM and Cybits the written reasoning for the decision of the Regional Court of Berlin (PDF, German) is now available. The court confirmed FSFE's view that users of GNU GPLed software are allowed to modify and install it even if it is shipped as a part of an embedded device's firmware.

The court has particularly denied that Cybits has infringed AVM's copyright by distributing its Surf-Sitter DSL software. According to the judge the AVM DSL router's firmware is a collective work. The GNU General Public License (GNU GPL) clearly states that the GPL parts contained in the firmware can be lawfully modified and reproduced. Thus it is acceptable that these parts are downloaded from AVM and edited during the installation of the Surf-Sitter software.

The trademark claims were also rejected. The fact that in the router's interface the trademark Fritz!Box is still visible after the installation of Surf-Sitter does not constitute an infringement.

It also unfolds from the reasoning that a modification of the GNU GPLed parts of the firmware does not trigger any competition claims. The Regional Court therefore confirms that it is in general permissible to modify firmware parts under the GNU GPL and to newly install these modified versions.

The granting part of the verdict which parallels last year's judgment of the Superior Court of Justice is mainly based on the idea that the customers impute wrongly displayed information about the internet connection and the status of the parental control to AVM. Cybits must remove this misinformation if they wish to sell their product. In contrast, modifications of the firmware as such are allowed.

The verdict is not yet final. The parties can still appeal the decision.