HTC has sent the site shipped-roms.com a cease and desist letter, demanding that they remove all HTC firmwares for phones. The site claims to have the largest collection of HTC ROMs available for download.
The archival of ROM versions is important for two reasons. One, companies often do not offer firmware updates for older or discontinued phones, making working older phones difficult to maintain and update. Two, hackers often use older firmwares to pull more compatible, functional files should a newer version of firmware have bugs in it.
A good case-in-point is both the Verizon HTC SMT5800 and XV6800. The HTC Americas web site lacks the current firmware for both devices, despite repeated requests from PhoneNews.com to have them update the current version of their site.
The legal waters here are murky, at best. Neither HTC North America nor HTC Taiwan have clarified what exact copyright laws are being violated in this situation. They have not made any reference to DMCA or other software-related copyright legislation.
This makes their claim a bit suspect; these firmwares are needed for phones to function, the firmware can only run on the device it is intended for (creating an implicit license), and HTC has never demanded an End User License Agreement (EULA) to download these firmware files. EULAs are often used to prevent distribution of copywritten code, even if offered for free.
One thing is clear, HTC has enough money to engage in lawfare if they wish to. However, in doing so, they run the risk of antagonizing the loyal base that has advanced HTC over the years. Apple is suffering from similar issues as those that evangelized iPhone are now defecting to Android, due to Apple’s perceived unfairness with unsigned code on their devices.
As the xda-developers community has found, exercising DMCA’s safe harbor rights may be the best solution. That community driven site has relied heavily on third party file sharing sites, forcing HTC to issue takedown notices to those sites… which typically operate in countries that ignore copyright legislation in the rest of the world.