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German court upholds open source licence

A German court has ordered a company to stop selling its wireless router because the company was not complying with the terms of the General Public License – which underpins the distribution of most open source software.26 Apr 2004

In what is thought to be the world's first reported case considering the terms of the GPL, a Munich court granted a preliminary injunction against the German subsidiary of Sitecom in respect of its wireless router.

The software for the product originated with the netfilter/iptabes project – which is licensed under the GPL. This is a licence commonly used for many free software projects, including the Linux operating system kernel. The GPL licenses software free of cost, but requires any re-distributor to provide the full source code.

According to the court order, Sitecom did not fulfil the obligations imposed upon it, and in particular did not make any source code available or include the GPL license terms with its products.

Following a warning notice from the netfiter/iptables project, Sitecom refused to sign a declaration that it would cease and desist with its current actions. The project therefore took Sitecom to court, asking for a preliminary injunction to ban Sitecom from distributing its product, unless Sitecom complied with the GPL obligations. It was granted earlier this month.

"To my knowledge, this is the first case in which a judicial decision has been decreed on the applicability and the validity of the GNU GPL", said Dr. Till Jaeger, one of the lawyers acting for the netfilter/iptables project.

According to CNET News.com, Sitecom's CEO, Pim Schoenenberger, commented, "As soon as Sitecom became aware of the issue, it immediately affirmed its cooperation in wanting to comply with the conditions of the GNU General Public License. By now all terms and conditions and requirements have been dealt with, and Sitecom now conforms to the GNU General Public License and are now awaiting their official approval".

The reason the company had not signed the project's declaration was " because it was phrased, as presented initially to Sitecom, as an admission of guilt on Sitecom's part and that Sitecom was liable for unlimited costs. Naturally we were unable to sign that," he explained.

This preliminary injunction follows a series of out-of-court settlement agreements that the netfilter/iptables project has concluded within a short period of time. When asked about the reasons for the sudden rise in legal pressure for GPL compliance, Harald Welte, Chairman of the Netfilter Core Team explained:

"We are not in any way opposing the commercial use of free and open source software. Specifically, there is no legal risk of using GPL licensed software in commercial products. But vendors have to comply with the licence terms, just like they would have to with any other, even proprietary software licence agreement."