EN 
DE A likely common case of license and copyright infringement.
Author: Dr. Carsten Emde, Open Source Automation Development Lab (OSADL) eG
Contribution – Embedded Software Engineering Congress 2017
A typical situation for embedded systems manufacturers: A customer wants to easily adapt the Linux kernel and root filesystem of their purchased embedded system to their needs, as well as develop the necessary additional libraries and programs. For this purpose, they order a fully installed Linux development system with a cross-toolchain from the manufacturer. For simplicity, the manufacturer installs a standard Linux distribution on a PC, adds their own additional software, and delivers everything together to the customer. They either don't consider whether this constitutes a license-compliant distribution of the included software, or they tacitly assume that the Linux distribution manufacturer is responsible for fulfilling the licensing obligations. What steps must be taken to ensure everything is above board and that no software author or copyright holder of the Linux distribution's content can accuse the manufacturer of violating their license terms?
Introduction to copyright law and its basic principles
International copyright law, whose fundamental principles are laid down in the Berne Convention, governs the protection of works of art and literature. Because software, like a novel, is generally written based on individual creativity inherent in human beings, it is considered literature and is therefore protected by copyright. This means that the author initially holds the exclusive rights to their work. However, the author can transfer these rights, and in the case of employment, they transfer the exclusive rights to their work to their employer without the need for an explicit agreement. The author cannot and may not transfer authorship; in this respect, they always remain firmly bound to their work.
Essential components of the exclusive rights to a work concern its copying and distribution; this is prohibited to all other persons under copyright law. If one nevertheless wishes to copy and distribute a work, such as a software library, without infringing copyright law, one must contact the holder of the exclusive rights and negotiate permission. This is usually done through a license agreement, which regulates the terms of use. The rights holder typically receives compensation for granting certain copying and distribution rights; however, the rights holder is entirely free to choose any other form of compensation – naturally, only as long as it does not violate the laws of the country.
Copyright and Open Source Software
Software distributed under an open-source license, like any other software, constitutes a human-created work protected by copyright. Copying and distributing such software without a suitable license is prohibited. The license agreement for open-source software differs from that of proprietary software only in that, instead of payment, certain actions must be taken when distributing the software. These actions typically consist of information, disclosure, and licensing obligations. While the scope and specific details of these obligations vary among different open-source licenses, all licenses share the common principle that the right to copy and distribute the software immediately expires if at least one of the license obligations is not fulfilled as required by the license agreement. For example, if the license agreement is not included with the distribution of open-source software, even though the license requires it, the distributor is in breach of the license, just as a licensee of proprietary software would be in breach of the license if they failed to pay the license fees.
Sanctions provided for under copyright law in the event of infringements
Copying and distributing a copyrighted work without a valid license is a violation of the law, and the legally stipulated sanctions apply. The copyright holder now has the right to...,
- to insist on the immediate cessation of the unlawful distribution of his work(s),
- to request a complete list of recipients of illegally produced copies,
- to demand information from all recipients of unlawfully produced copies and
- to order the physical destruction of all illegally produced copies by court order.
The latter point, in the case of books containing an unlicensed copy of an illustration, could involve removing and destroying the relevant page, or, if this is not reasonably possible, shredding the entire book. In the case of software stored in an EPROM, it could mean rendering the EPROM unusable and inserting a replacement EPROM without the illegally copied software.
Exceptions to the legally regulated prohibition on copying and distributing
Copyright law employs a common procedure to ensure that certain special cases are not overlooked: first, a general prohibition is issued, and then specific exceptions are permitted. Such statutory permissions under copyright law pertain to copying and distribution that is necessarily required for the intended use of a product or for exercising rights regulated elsewhere.
Necessary copying for intended use
A software product purchased on a physical medium often requires copying to a computer's local storage device before it can be used. Although this is generally prohibited, it is permitted by law. When the software is then executed—again, as intended—it typically needs to be copied into the computer's memory, and data and instructions must subsequently be loaded into the processor's registers. With multiple data and instruction caches, this can result in numerous copying operations, all of which are legally permissible because the software product could not otherwise be used as intended.
Required dissemination upon resale
The right to acquire an object and, if desired, to resell it, constitutes a fundamental freedom that cannot be restricted by copyright. In this respect, the author's exclusive distribution right is "exhausted" when a lawfully licensed work is resold by the purchaser. However, this so-called "exhaustion principle" of copyright law is subject to certain conditions:
1. The work must have been transferred in compliance with the license at the time of acquisition.
2. The seller must not have made any copies or, if he has made copies, must render them unusable.
Application of the aforementioned legal and contractual regulations to the case of the transfer of a complete Linux distribution
When a Linux distribution is downloaded from the manufacturer's server and installed on a local computer, initially only the manufacturer performs a copyright-relevant activity – namely by copying software to a server operated by them and making it available to a user, as shown in Figure 1 (see Figure 1). PDF) shown.
In the aforementioned scenario, the distributor's manufacturer must fulfill all licensing obligations. For example, if the licenses of some of the included software packages impose disclosure requirements, such as making the complete corresponding source code available upon request at cost price on a medium commonly used for data transfer, then the distributor's manufacturer must fulfill this licensing obligation. The user, on the other hand, is not subject to any licensing obligations as long as they do not copy the software themselves.
But what happens if the user copies the downloaded installation image to a CD or DVD and gives it to someone else without deleting their own installation? This is by no means part of the intended use and therefore not covered by any legal authorization.
If a user doesn't want to infringe copyright, they need their own license that permits copying and distribution. Such a license can be acquired at any time, as the copyright holders offer them to everyone – a key requirement of an "open source" license. Besides the requirement that the license must not be discriminatory, it must also be perpetual and free of charge. In return, however, the user is obligated to comply with the license terms. Considering that a complete installation of a Linux distribution contains at least 5,000 software packages, and often over 10,000, it's hardly conceivable that the user is able to examine each package for its licensing requirements and then comply with them. Rather, it's likely that the license requirements will not be met, and the user will infringe copyright. Consequently, the many thousands of software developers who hold rights to the illegally copied software can then assert these rights against the user (see PDF Figure 2).
Trademark rights
In addition to respecting the copyrights of software authors, attention should also be paid to the trademark rights of the Linux distribution's manufacturer. These rights pertain to the trademarked use of the distribution's name and logo. While simply mentioning the name for informational purposes is usually unproblematic, if the name or logo appears in a context where the distribution's well-known reputation is at stake, the trademark owner can prohibit its use. Therefore, virtually all distributions only permit the use of their name and logo if the distribution is distributed unmodified. Even the installation of additional software not normally included, which has the potential to alter the behavior of the original distribution, means that it is no longer considered an unmodified distribution. In this case, to avoid trademark infringement, all trademarked word or image marks would have to be removed from the distribution before distribution. It is readily apparent that this would require an extraordinarily large effort, which is usually not feasible.
Practical example of license-compliant distribution of a complete Linux distribution
As mentioned above, trademark law stipulates that the license of distribution manufacturers only permits the distribution of an unmodified version, while copyright law requires that the distribution be copied by the manufacturer, not by the user. It follows that it is entirely possible to distribute a complete Linux distribution if it is purchased individually on a data carrier from the distributor and distributed unchanged by the purchaser without the latter retaining a copy. This is because the copyright-related exhaustion of the exclusive distribution rights of the copyright holders then takes effect, meaning the distribution manufacturer must fulfill its licensing obligations, and consent to the use of its trademark rights is present. This results in the situation shown in Figure 3 (see...). PDF) shown scenario.
If the recipient is to be provided with additional software that requires a computer with a Linux distribution installed, such as a board support package for an embedded system that also includes a toolchain for cross-development, this additional software should be delivered on a second data carrier. The installation instructions should then inform the buyer that, as a first step, they should install the Linux distribution from the original data carrier according to the respective manufacturer's instructions, and then, in a second, separate step, install the additional software. Naturally, the licensing requirements for the additional software must be fulfilled by the manufacturer of the second data carrier in such a case.
author
Carsten Emde has over 25 years of experience as a software developer, system integrator, and trainer. His areas of expertise include graphical user interfaces, machine vision, and real-time operating systems. He has been the managing director of the Open Source Automation Development Lab (OSADL) eG since its founding in 2005.
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