In June 2013 a German court (the Landgericht Hamburg) reaffirmed the legal validity of the GPL v2 open source license. The court found a media player manufacturer had violated the terms of that license by integrating a modified version of the open source netfilter/iptables software into its hardware without making the full source code appropriately available. Such action not only violated the GPL v2 license, but also breached an earlier agreement concluded between the software’s author and the manufacturer.
Open source software and the GPL v2 license
Open source software has become relatively common in the ICT world, and programmers who choose to make their work(s) available via the open source licensing route can choose from a number of licenses. One of the more popular open source licenses is the GPL v2 license, which allows the free use, modification and redistribution of the licensed software. However, the GPL v2 license does come with certain conditions attached: the redistributed code must also be licensed under the GPL v2, which requires that end-users are able to obtain a copy of the source code. This requirement allows end-users to verify precisely how the software works and to have the option of making their own modifications.
Background to the dispute
An example of such GPL v2-licensed software is netfilter/iptables, created by a programmer called Mr. Harald Welte. The software, which permits certain types of network analysis and filtering, can be integrated into network devices, such as routers. A hardware manufacturer, called Fantec, chose to integrate a version of netfilter/iptables into one of its media players. However, it did not make all of the corresponding source code available to end-users who purchased the media player.
In 2010 a similar dispute between Mr. Welte and Fantec had been amicably resolved through a private agreement. Under that agreement Fantec had agreed to observe the requirements of the GPL v2 in its devices, under penalty of a fine to be paid to the copyright holder in case of violation. However, a technical check of the media player’s software brought to light that it contained the software, without making all of the corresponding source code available. As a result, Mr. Welte initiated legal proceedings against Fantec before the German courts (the legal jurisdiction where both Mr. Welte and Fantec are based).
The German court’s judgment
In a decision of 14 June 2013, the German court (the Landgericht of Hamburg) reconfirmed the validity of the GPL v2 license, ruling that the unavailability of the source code violated the terms of the open source license, and therefore the copyrights of the author, and it breached the 2010 agreement. Fantec was ordered to pay damages as set out by the 2010 agreement (as well as Mr. Welte’s legal fees) and required to present information about the media player’s sales to determine the license fees owed.
A surprising ruling?
The legal validity of GPL-licenses has been disputed in the past on several grounds, including that their so-called “viral clause” (which requires that modified software must be GPL-licensed as well) would violate the rights of the producers of derivative programs. However, so far no court seems to have accepted such an argument. This ruling is not particularly surprising either, as another German court (the Landgericht of Munich) had already affirmed the legal validity of the GPL, in a very similar 2004 case also involving the netfilter/iptables software. Thus, the GPL’s validity is fairly well established in European courts.
A new element in this case, compared to the 2004 ruling, was that Fantec had argued it was not responsible for the infringement as the software in question had been provided to Fantec by a Chinese subcontractor who had apparently provided assurances about the software’s integrity. Fantec claimed it could not technically verify the composition of the software itself and that any infringement had been committed by the contractor (rather than by Fantec itself). The court rejected that argument, declaring that Fantec remained ultimately responsible for the compliance of its own products with applicable laws and should have tested the software for infringement. Presumably, the ruling would not stop Fantec from seeking compensation from its subcontractor for the damages to be paid to the copyright holder, but that action would not affect Fantec’s obligation to pay remuneration to the copyright holder.
Hans Graux comments:
“Open source software has proved to be a reliable and useful way to minimise development time and improve the stability and security of software. However the term “open source” does not necessarily mean “free of restrictions”. Software and device manufacturers using open source software need to assess what are the licensing requirements and respect them. The use of contractors does not absolve software and device manufacturers from that responsibility.”
For further information on this legal development please contact Hans Graux at (email@example.com).