This is an interesting case, but please note carefully that we only have one side of the story. In effect, it appears that AVM is suing Cybits for modifying software on its router.
The best balanced view is on GrokLaw. H-Open has a more detail reporting and AVM’s view point. I had been following it since yesterday through Glyn Moody’s post. Say you follow my discovery trail, starting from Moody’s post, then to FSFE’s post (Note that the post was created before the oral hearing so the ‘Oral Hearing’ part was posted later). You will be left wondering why the plaintif AVM is that stupid. Since the court filing is in German and I cannot read German, I cannot find out for myself AVM’s part of the story. This is especially true since as GrokLaw noted in the first sentence that GPL is rarely (if ever) tested in court, except Germany. GrokLaw’s article clarified the claim from AVM’s viewpoint. The H-Open has more details in the last paragraph. AVM is not that stupid after all.
AVM is worried that its customers do not realize that Cybits modified its router. It is worried that its customers will then blame AVM if something goes wrong, even if it is Cybit’s. That is a legitimate worry. Let’s go ahead and presume that Cybits is an intransigent vendor which refuses to work with AVM to cure AVM’s concern, then AVM has to sue. The question is: on what grounds?
I believe AVM had chosen poorly. By choosing to argue that Cybits has no rights to modify the GPL part of the software on the routers it lands itself in very difficult position. Every argument it tries to present on copyrights ground turn out to hurt itself more than help it’s case. The scenarios it was arguing was well researched by FSF and rejected. I particularly like the argument ‘You can modify the software, but just not on our routers’ advanced by AVM’s lawyer as reported by The H Open.
Do AVM has a copyright case with reference to Cybits modifying the GPL part of the software and reinstall it on the router? Most likely not. What AVM lawyer is trying to say is this is about AVM trying to protect itself from the problems Cybits caused with Cybits modification. What the lawyer is trying to do is to try to twist GPL in a way that will help AVM. To do so it has to try to carve up a niche to the strong sharing provision of GPL. Bad tactics here.
Quite frankly, all is needed is Cybits put print on some papers or its application informing the users that it will be modifying bits and pieces of the firmware. I cannot see why Cybits will object to that. To me it is not necessary to do so. Just like AVM argued (but again to their disadvantage), router is not treated as a computer by consumers and consumers do not expect to install software on the routers. Therefore, if they bought Cybits’s software and install it on the routers, they will be fully aware that the firmware is from Cybits, not AVM, thus no real harm to AVM’s reputation.
I believe the case is extremely likely to be another case where a vendor tried but failed to create a chip of GPL’s armour to protect free software. I think this will actually make GPL stronger as it add another failure to challenge the GPL.
However, it must be said that AVM do have a legitimate concern that Cybit’s modification will cost it money in customer support if something goes wrong on the router. To me the solution is easy: Tell the customer to flash the firmware to the official version if something goes wrong. The cost, to AVM, is small. If it becomes unreasonably large, then AVM can sue Cybits to recover the money. Risk of permanent reputation damage? Not high and the damage Cybits will be asked to fork out can cover it. If AVM had waited for real damage to occur, it will have a stronger case and need not try to rely on GPL to win the case.