Current licensing of XeSS binaries, imposing a blanket prohibition on reverse engineering, decompilation, disassembly, and alterations to the software’s operation during execution, is irreconcilable with Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs. Article 5(3) protects an authorized user’s right to observe, study, and test a program during legitimate use; Article 6 permits decompilation where indispensable to obtain information not readily available that is necessary to achieve the interoperability of an independently created program with other programs. Under European Union law, such statutory analysis and reverse engineering conducted to achieve interoperability with Linux-based operating systems cannot constitute an actionable copyright infringement.
Article 8, second paragraph, expressly renders contractual provisions contrary to those rights null and void. Intel’s permission is therefore unnecessary for work satisfying these statutory conditions, and the licence cannot validly prohibit that activity. Consequently, under Article 8(2) of the Directive, the current unconditional reverse-engineering and decompilation prohibitions in Intel's LICENSE.txt are null and void to the extent that they conflict with mandatory statutory rights, rendering those specific restrictions unenforceable under Union law.
In Sony Computer Entertainment Europe v Datel, C‑159/23, 17 October 2024, particularly paragraphs 36–38 and 48–52, the Court of Justice reaffirmed that software functionality falls outside copyright protection, recognised the validity of independent implementation of ideas and principles established through technical analysis, and excluded runtime variable contents in memory from copyright protection where they do not enable reproduction or subsequent creation of the program. Furthermore, in Alphabet and Others, C‑233/23, 25 February 2025, the Court held that a dominant undertaking's refusal to ensure its digital platform interoperates with a third-party application can constitute an abuse of dominance under Article 102 TFEU.
I request that Intel refer this issue to its legal and engineering teams, explicitly preserve mandatory statutory interoperability exceptions in LICENSE.txt, confirm that activity protected by Articles 5(3) and 6 will not be treated as grounds for licence termination or enforcement, and make the interface specifications and driver-contract information needed for XMX-accelerated XeSS interoperability on Linux readily available.
Any objection should identify the right allegedly infringed and the applicable legal authority; repeating the contractual prohibition would merely restate the clause whose enforceability is under challenge. Continued measures to chill legitimate interoperability efforts, or the initiation of enforcement actions against developers exercising protected rights, risk precipitating regulatory scrutiny before European competition authorities as well as declaratory judgment proceedings regarding the invalidity of these restrictive licence terms.
Current licensing of XeSS binaries, imposing a blanket prohibition on reverse engineering, decompilation, disassembly, and alterations to the software’s operation during execution, is irreconcilable with Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs. Article 5(3) protects an authorized user’s right to observe, study, and test a program during legitimate use; Article 6 permits decompilation where indispensable to obtain information not readily available that is necessary to achieve the interoperability of an independently created program with other programs. Under European Union law, such statutory analysis and reverse engineering conducted to achieve interoperability with Linux-based operating systems cannot constitute an actionable copyright infringement.
Article 8, second paragraph, expressly renders contractual provisions contrary to those rights null and void. Intel’s permission is therefore unnecessary for work satisfying these statutory conditions, and the licence cannot validly prohibit that activity. Consequently, under Article 8(2) of the Directive, the current unconditional reverse-engineering and decompilation prohibitions in Intel's LICENSE.txt are null and void to the extent that they conflict with mandatory statutory rights, rendering those specific restrictions unenforceable under Union law.
In Sony Computer Entertainment Europe v Datel, C‑159/23, 17 October 2024, particularly paragraphs 36–38 and 48–52, the Court of Justice reaffirmed that software functionality falls outside copyright protection, recognised the validity of independent implementation of ideas and principles established through technical analysis, and excluded runtime variable contents in memory from copyright protection where they do not enable reproduction or subsequent creation of the program. Furthermore, in Alphabet and Others, C‑233/23, 25 February 2025, the Court held that a dominant undertaking's refusal to ensure its digital platform interoperates with a third-party application can constitute an abuse of dominance under Article 102 TFEU.
I request that Intel refer this issue to its legal and engineering teams, explicitly preserve mandatory statutory interoperability exceptions in LICENSE.txt, confirm that activity protected by Articles 5(3) and 6 will not be treated as grounds for licence termination or enforcement, and make the interface specifications and driver-contract information needed for XMX-accelerated XeSS interoperability on Linux readily available.
Any objection should identify the right allegedly infringed and the applicable legal authority; repeating the contractual prohibition would merely restate the clause whose enforceability is under challenge. Continued measures to chill legitimate interoperability efforts, or the initiation of enforcement actions against developers exercising protected rights, risk precipitating regulatory scrutiny before European competition authorities as well as declaratory judgment proceedings regarding the invalidity of these restrictive licence terms.