GPL defenders say: See you in court

A legal team enforcing the most widely used license in the open-source and free software movement has shown that it's not afraid to take its cases all the way to court.

For years, violations of the General Public License, or GPL, have been met with quiet discussions to resolve compliance problems that can result when open-source software is used improperly. Now, however, the Software Freedom Law Center is taking a hard-line approach, filing a copyright infringement lawsuit against Monsoon Multimedia for allegedly failing to abide by requirements of the GPL.

Dan Ravicher, SFLC's attorney on the case, said the suit isn't part of a broader effort to give GPL enforcement a stronger legal foundation. But the action has repercussions for a much larger audience than just the single defendant.

"There still appear to be flaming examples of either indifference to or outright disregard for the GPL," said James Harvey, an attorney with Hunton & Williams who is not involved with the suit. "I think those flaming examples will increasingly be called to order by somebody, whether SFLC, a copyright holder or someone else in the open-source ecosystem."

After the SFLC filed suit on September 20, Moonsoon said it would comply with the GPL. But that's not enough to call off the lawyers.

"Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance," Ravicher said, though he declined to say what other actions the SFLC is seeking.

And the SFLC doesn't want to be a pushover. "If you start getting a reputation for being a pansy, then people are going to conclude they don't have to do anything," he said.

Ravicher co-founded the SFLC along with one of the biggest legal guns in the free and open-source software arena--Eben Moglen, the Columbia Law School professor who for years represented GPL creator Free Software Foundation and who also oversaw the creation of the new GPL version 3. The center initially was funded by the Open Source Development Labs--a consortium now called the Linux Foundation--and also is sponsored by Linux open-source allies including IBM, Hewlett-Packard and Red Hat.

The center's willingness to sue Monsoon isn't the first recent example of legal assertiveness on the part of free and open-source players. In July, Microsoft sought to distance itself from a provision in the newly released GPLv3, but in August, the Free Software Foundation--which the SFLC represents legally--countered with a strongly worded statement. "We will ensure--and, to the extent of our resources, assist other GPLv3 licensors in ensuring--that Microsoft respects our copyrights and complies with our licenses," the foundation said.

Hackles raised
The Monsoon dispute involves software called BusyBox, a collection of utilities tailored for devices with tight memory constraints. It's governed by version 2 of the GPL, which permits anyone to see, modify and distribute the software, as long as modifications are also released under the GPL. This is the quid pro quo arrangement that attracted Linux kernel leader Linus Torvalds: anyone can benefit from a freely available software project, but changing it requires them to give back the fruits of their own labor.

The license also requires anyone distributing GPL software, in an executable form that a computer can run, to make the complete source code available. One example: Cisco Systems subsidiary Linksys, which shares the GPL software used in its wireless networking equipment.

"If you start getting a reputation for being a pansy, then people are going to conclude they don't have to do anything."

--Dan Ravicher, attorney, SFLC

Monsoon's Hava product line lets customers record video and watch it on multiple PCs or over the Internet. In August, a Hava Forum discussion began on whether the systems used Linux, which like BusyBox is governed by the GPL. A Hava support representative whose screen name is Gary-MM said in the discussion: "I have a little secret to let you in on--Hava runs Linux! Yes, much of the source is GPL."

But the interaction turned frosty. "Some of you appear to be violating the terms of the End User License Agreement," Gary-MM said of efforts to deduce whether GPL software was used in Hava. (Those efforts included finding the text "BusyBox" in the Hava software.) "Seems to me that some of you have just come out blatantly admitting you are reverse-engineering the firmware--or trying to."

Although Gary-MM later said he was just "pokin' a bit of fun at you" without intending any threat, "adversarial" forum postings and the company's lack of response to a September 11 letter from SFLC led to the suit.

[The_Decider]

Not quite right

If you make changes, that alone does not trigger the reciprocity requirement.

You also have to distribute it.

A company can take an OSS project, alter it for internal use and never have to release anything, unless they want to.

Really, is it difficult to get that right?

It is about time the FSLC take a hard line to those who try to steal others work.

[ittesi259]

High Impact? Ok, but old news

Why wasn't CNET reporting on this last week when everyone else was?

[WJeansonne]

Those in Glass Houses...

and what goes around comes around. This group is propping up a baseless license, since the license itself violates over 235 know patents of Microsoft. They should count their lucky stars the Microsoft hasn't sued their constituency yet.

[gumout]

The SLC tactic

This lawsuit isn?t even a copyright case. It is a breach of contract claim. The complaint
states, ?Defendant has distributed to the public copies of the Firmware in its Infringing Products and via its website without providing source code to BusyBox?. That is a breach of contract claim since ?failure" to distribute source code is not a violation of the Copyright Act.

The complaint states, ?As such, any rights Defendant may have had under the License to redistribute BusyBox were automatically terminated the instant that Defendant made non-compliant distribution of the Infringing Products or Firmware.? Here is what the federal courts say about New York law concerning this claim:

?. . . rescission of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in rescission of a contract. Id. at 238 (?New York law does not presume the rescission or abandonment of a contract and the party asserting rescission or abandonment has the burden of proving it?).?; Atlantis Information Technology, Gmbh v, CA Inc.,, 2007 WL 1238716 (E.D.N.Y. April 30, 2007).

-- so much for ?automatic termination?. The plaintiffs named in the complaint have no standing to bring this action because the GPL requires distribution of source code to ?all third parties?. The plaintiffs are obviously not ?third party? beneficiaries to the GPL and hence have suffered no personal ?injury-in-fact? which is required for standing in a lawsuit.

This lawsuit is simply a propaganda move by the SFLC. The SFLC will file for dismissal of this action before any F.R.C.P. Rule 12 (Motion to Dismiss) is ever filed with the Court, since they would appear very foolish when the Court subsequently dismissed the case. The SFLC will dismiss and then trumpet ?The GPL won in court !?
Not.