back to article Developer CEO 'liable for copyright infringement' over unlawful tool

The chief executive of a software company in Germany has been found liable for copyright infringement after software developed by the company was amended in an open source environment to allow copyright-protected material to be accessed unlawfully. Appwork created "JDownloader2", a download management tool, but allowed any …

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  1. Destroy All Monsters Silver badge
    Big Brother

    A regional court in Hamburg said it was an infringement of German copyright laws to circumvent the technological protection measure.

    Hmmm.... the state-enforced handing out of exclusive rights at duplication morphs into state-enforced interdiction of applying certain manipulations meant to circumvent share denial.

    I love the smell of cancerous legislative creep in the afternoon.

    1. Colin Millar

      Exclsive rights

      Well - the first wouldn't be any good without the second. If the state is to have the power to grant exclusive rights then it must enforce its own grants or it doesn't have the power to grant rights.

      Bit stupid of appworks to allow the infinging version to be presented as its own work.

      1. David Dawson

        Re: Exclsive rights

        Yes, I think that is the issue really. Their process for accepting submissions appears to be fully automated, which is the mistake here.

        1. JEDIDIAH
          Facepalm

          Re: Exclsive rights

          So is the enforcement of penalties. The offending party should have the opportunity to resolve the situation in the quickest and least disruptive manner possible. Something like a C&D letter or a DMCA takedown request should have been an option.

          They don't need to be that fascist.

          1. Anonymous Coward
            Anonymous Coward

            Re: Exclsive rights

            >They don't need to be that fascist.

            Must resist temptation to Godwin...

      2. NumptyScrub

        Re: Exclusive rights

        It's an infringement of German automobile legislation to exceed posted limits on the road, yet both BMW and Mercedes allow their vehicles to be modified to be able to exceed those (including the removal of ECU imposed maximum speed restrictions), and resold with their badges still on them (hello Alpina and Brabus).

        So, is that the responsibility of the Alpina CEO (for modifying), or the BMW CEO (for allowing it to stay badged and therefore presented as a BMW product) that their products can be used for unlawful purposes? Rather than, say, the responsibility of the driver of the vehicle for deliberately using it in an unlawful manner...

        1. Anonymous Coward
          Anonymous Coward

          Re: Exclusive rights

          @numptyscrub - the situations aren't comparable. You aren't stealing when you exceed the speed limit.

          1. heyrick Silver badge
            FAIL

            Re: Exclusive rights

            "the situations aren't comparable. You aren't stealing when you exceed the speed limit."

            No, and you aren't endangering people's lives and risking murdering hapless folk (think of the children!) who are in your way when you "steal" some video.

            The point, that you seem to have spectacularly missed, is "modification applied means that activity that is against the law is now possible". In both cases.

            1. Anonymous Coward
              Anonymous Coward

              Re: Exclusive rights

              @heyrik - <chuckle> You don't live in Germany do you ? It's perfectly legal (in certain places) to drive a Brabus at top speed.

              There's no place in Germany where it's legal to steal content.

              1. Anonymous Coward
                Anonymous Coward

                Re: Exclusive rights

                There's no place in Germany where it's legal to steal content.

                You can't steal content. To steal you would have to deprive them of the original...Hence why copying is not called theft.

          2. JEDIDIAH
            Devil

            Re: Exclusive rights

            You aren't necessarily "stealing" when you use an unaproved media decoder either.

            On the other hand, speeding is related to actual occurences of real grave bodily harm and property damage.

          3. Paul Crawford Silver badge

            Re: Nicho

            You seem to be mistaking stealing, where you deprive the owner of their property (a criminal act), with copyright infringement, where an unauthorised copy is made but the original is still there (a civil act).

            You also seem not to have comprehended that this was about saving a copy of a video stream that, I am guessing, you already paid for. So it is not even depriving the copyright holder of revenue, but simply doing what is perfectly legal in other cases (see the judgement(s) in respect to the original VCR use) and what most people see as "fair use".

            1. Anonymous Coward
              Anonymous Coward

              Re: Nicho

              @pc - OK let's spend a bit of time going through this.

              (1) Theft vs copyright - Yeah OK - poor choice of words on my part. soz.

              (2) You are guessing or you know ? I ask because I suspect that you don't get the rights to the video stream in perpetuity, I am willing to bet the grant is for a one time use (but confess I'm not sure).

              (3) What most people see as 'fair use' isn't what's (in the US at least) legally considered fair use.

              1. heyrick Silver badge
                Happy

                Re: Nicho

                "(3) What most people see as 'fair use' isn't what's (in the US at least) legally considered fair use."

                Remind me - which state is Germany in? [hint: "PA" is not the correct answer]

            2. Sirius Lee

              Re: Nicho

              I think this is to miss the point. Stealing is stealing whether civil or criminal. However the offence here seems to be the creation of code to facilitate access to copyright material by others. That is like prosecuting Yale for permitting locksmiths in the high street to create keys that could open any door.

          4. h3

            Re: Exclusive rights

            Most normal people would fail to see the difference between something that records a stream and say recording from the tv or radio.

          5. Anonymous Coward
            Anonymous Coward

            Re: Exclusive rights

            "You aren't stealing when you exceed the speed limit."

            You aren't stealing when you download copyrighted material either....

          6. tom dial Silver badge

            Re: Exclusive rights

            Well, and enabling a user to bypass technical contraints on copyright infringement probably does not result in many instances in which the theft, so called, of intellectual property, so called, results in actual loss of a sale. So the "theft" is in the same hypothetical class as the injury that might result from overspeed.

        2. Anonymous Coward
          Anonymous Coward

          Re: Exclusive rights

          "It's an infringement of German automobile legislation to exceed posted limits on the road, "

          Don't some German autobahns have no speed limits?

        3. Sirius Lee

          Re: Exclusive rights

          Or all those locksmiths in the high street selling products that could fashion a device to unlock a door.

          This one *has* to be appealed.

        4. Colin Millar

          Re: Exclusive rights

          Yep - you can always tell a total Numpty by the meaningless crap analogy to something totally unconnected.

          For the brain free numpties out there it really is simple.

          If the state makes up laws and doesn't enforce them its laws are meaningless.

          1. Adam Inistrator

            Re: Exclusive rights

            you ARE a servile twit arent you?

  2. Anonymous Coward
    Anonymous Coward

    The Implications

    That's going to put locksmiths out of business then. Lost your key ? Sorry nothing we can do.

    Just as a thought, I wonder if the German Chancellor is personally suing Obama for breaking her phone security ?

  3. Terry Cloth

    Is appearing as their own work the only problem?

    If so, the just need to change to a Free Software license that requires changing the name, à la Firefox.

    _If_, on the other hand, that is insufficient, and simply having someone insert objectionable material into your Free Software program is enough to get you into trouble, proprietary wins. (At least in Germany. How long will it take the RIAA to put that one into law in the U.S.?)

    1. ThomH

      Re: Is appearing as their own work the only problem?

      Yes, I think that was the problem. It remained an AppWork product even after changes. Hence the company assumed responsibility and the CEO ended up being liable.

      So it's broadly similar to going after a hosting company for propagating an infringing website.

  4. John G Imrie

    Bad analogy time

    If you make a gun and someone buys it then removes the safety and sells it on. Is the original manufacture liable if the weapon causes an accident.

    1. ThomH

      Re: Bad analogy time

      They are if you modify the gun and then resell it through the original maker.

  5. Anonymous Coward
    Anonymous Coward

    Amended

    So the manufacturer of ANY item of equipment that is amended for illegal use, is also liable for the crime? The world is mad.

  6. Velv
    Terminator

    So, essentially, the company allowed third party developers to insert code into their commercial product without checking what the the new code did (or deliberately chose to ignore).

    Third party developers could have inserted all sorts of malware or other nefarious things into their commercial product, leaving copyright infringement as the least of the companies worries. Sounds like the CEO probably got off lightly.

    The moral of the story is - if it's in your name, make sure you know what you're putting your name to!

    1. JEDIDIAH
      Linux

      A little too open for Germany perhaps...

      The seem to have had very lax commit policies for their source repository and include the results of that in their nightly bleeding edge package builds. This appears to be their community or "cooker" environment rather than their commercial product which is vetted more thoroughly.

    2. h3

      They install malware (Not just toolbars the impossible to remove without a reinstall variety). The Windows installer is deliberately broken. (Or was for about 6 months).

      Not even sure the .jar version is safe.

      1. Anonymous Coward
        Anonymous Coward

        not true..

        I've been using their software for years, there is a request during the installation process to install some toolbar but it's clearly marked and not misleading.

        I find it to be one of the best pieces of software around, even if they're facing a never ending battle against sites updating their authentication methods (which is probably one reason they allow cutting edge code to be delivered to the public quickly)

        I've had more malware from the uTorrent installer (which these days is highly misleading, and can end up installed if you so much as twitch after clicking the first accept due to intentionally sneaky button placement during the install) That Yahoo search replacement thing it installs eats CPU cycles for no apparent reason despite claiming to 'simply' monitor the default search settings / homepage of your browser and reset them to Yahoo if anything changes them. I've actually started avoiding (read BLOCKING) all things Yahoo as a result of that.

        As for the ruling, if there's any sanity left in this world it will be quickly overturned.

      2. Hans 1
        Windows

        @h3

        They install malware (Not just toolbars the impossible to remove without a reinstall variety).

        Never came across those ... I do have kids using a PC installing all types of toolbars on a weekly basis. Do, do you mind to name the toolbars in question ? Will install it tonight as soon as I get home and will post instructions tomorrow on how to remove.

        I had removed one homepage-hijacking thingy that was very well installed ... it added itself into the

        "Command\Open" keys, such as Hkey_Local_Machine\Software\Classes\html\Command\Open and the equivalent for firefox, chrome, ie programs (do not have windows at hand, cannot check full path, sorry). Appended itself into all browser shortcuts across the system, as well.

        Been removing viri from Windows boxen since 2000. Have not yet come across a virus for Mac/Linux, though I have heard myths.

        I recently also wrote a little tool to find root kits ... pretty simple, actually ... full drive listing from cmd.exe's dir and the same from VBS, then diff the two - cmd.exe will list some dirs that VBS does not - those are the root kits ... ;-) If you are computer savvy, you can do the same from a linux livecd, diff the lot and sort.

        Of course, you need to know the NTFS file system, windows directory hierarchy etc to be able to find suspects ...

        I occasionally give tramps a coin - I have a heart for the deprived.

  7. Matt_payne666

    Ok then... I buy a Dyson vacuum cleaner... modify the crevice tool into a point and use it to stab someone to death... will I be sharing a prison cell with jimbob Dyson as he didn't build in enough safeguards to prevent this sort of misuse?

    I'm not a fan of piracy, but surely the original author can only be liable for his work... if this encryption bypass tool was in the code... so be it... but if someone just added it then its the actions of the second author...

    Maybe that example is a little OTT... how about someone takes an open source Linux bistro, adds code to trigger a bomb... is the original author accountable?

  8. bigtimehustler

    I think if it was in their release code, they should be liable for it, if it was in a nightly automated build then they should not be. Either way, wouldnt removing the protection system from this tools just be the same as any file sharing tool that doesnt have protection, like a bittorrent client for example? I don't see why they were liable anyway given how many tools just don't have protection to start with and get into no trouble.

  9. Anonymous Coward
    Anonymous Coward

    the technological protection measure...

    Suppose the measure involves Death Squads being sent out to eliminate those who access the content.

    Would avoiding the Death Squad then be against the Law?

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