Due to its large range of functions and flexibility in adapting to different hardware platforms Linux-based firmware finds its use on many devices, for example, routers, internet-enabled television, mobile phones. In detail, in the case of the relevant GNU General Public License (GPL), it is not always easy to interpret its scope. As such this is an example of how the propagation or adaptation of software is only permitted if the software itself or its further development is handled under the GPL. If GPL-licensed software is combined with proprietary software the question arises as to what extent the respective license terms are applicable.
The District Court of Berlin inter alia considered this question in November 2011 (Decision of 11.8.2011 – 16 O 255/10). In the proceedings the use of a modified version of a router firmware comprising inter alia GPL (version 2) licensed software components was in dispute. A router manufacturer turned against a software provider who created his own router software on the basis of the originally provided software. As a result the District Court denied a copyright violation as the router software manufacturer himself used open-source software for his firmware and therefore in turn was bound by the GPL terms and as such could not prevent further modifications of his software on the basis of copyright.
First, the District Court assumed that a modified firmware on a device could be considered in its entirety as a so-called compilation of stored and installed software components in the sense of § 4 para. 1 UrhG (Urhebergesetz – German Copyright Act). Accordingly, a compilation is recognized as a copyright-protected work if multiple works, data or other elements are combined in a way of personal intellectual creation regarding the selection or arrangement of components. But in the given case it was not undisputed whether aforementioned condition was fulfilled in the event of a mere combination of existing programs. In contrast to the main proceedings of the District Court in the preceding preliminary injunction proceedings (Higher District Court of Berlin – 24 U 71/10) the presence of a compilation pursuant to § 4 para. 1 UrhG was denied because the selection and arrangement of individual programs was determined merely by technical conditions which left no space for own creativity.
Subsequently, the District Court examined the effects of the GPL on the firmware as a compilation and came to a conclusion that works, which include open source software, as a whole are subjects of the GPL terms. An “infection” – as the Court ruled – of an IT-product otherwise would not raise any objections if the software in use significantly depends on open-source components. At this point, the District Court defined compilations in the sense of point 2 of the GPL as works including open-source software which as a whole are subject to the GPL terms. This conclusion is however misleading. That is because point 2 of paragraph 3 of the GPL (version 2) provides that open-source software-compilations, which also include non-GPL-licensed software, retain respective license rights on the other components. In fact, the aim of that provision is only to not prevent or impede an enforcement of the GPL in relation to those license rights.
The decision of the District Court shows that for a combination of software components the licensing conditions of the respective components must be taken into account from the very beginning, in particular if open source software is used. The following questions inter alia arise for developers: Shall an adaptation of software be conducted or shall only already-existing software elements be grouped together? Can, as the District Court hinted, a mere putting together of software components produce an own compilation copyright? And what is the impact of the respective license terms on such a compilation as well as on the respective rights on the other software components?