Busy Box Settles Another Case

News today from the Federal District Court for the Southern District of New York that Eric Andersen and Rob Landley, the two principal developers of the BusyBox open source utility, have moved to voluntarily dismiss the case they brought again High-Gain Antennas alleging that High-Gain had violated the GNU General Public License (GPL) by distributing the Busy Box software without complying with the terms of the GPL. The dismissal itself was officially approved by Judge Leonard B. Sand on March 3, 2008. While no press release has yet been issued by the Software Freedom Law Center (SFLC) , the non-profit legal group that represented the Andersen and Landley in the case, the strong presumption in a situation such as this is that the dismissal signals that case against High-Gain Antenna has reach a settlement. To date Andersen and Landley have brought similar suits alleging violations of the GPL against Xterasys Corporation, High-Gain Antennas, and telecommunications giant Verizon Communications. A settlement in the case against High-Gain Antenna would mark the third such settlement leaving only the case against Verizon still pending.

While Busy Box and the SFLC have not brought another suit since filing their case against Verizon back on December 6, 2007, action in the Verizon case looks to be coming soon as Verizon currently has until March 14, 2008 to answer or otherwise respond to the complaint filed against them in the case. It remains to be seen if the case against Verizon will be settled out of court or continue beyond this date and become the first lawsuit alleging a violation of the GPL ever to go to trial in the U.S. Regardless, the cases brought by Busy Box remain significant in demonstrating that open source licensors have the will and the ability to successfully enforce the GPL against alleged violators in court, rather than limiting themselves to pursuing other means of enforcing violations outside of court. What changes these and any future cases drive in the open source license enforcement landscape and open source compliance largely remains to be seen, but for certain they are driving changes. For additional information on the previous settlements, please refer to my prior posts (here, here, here, here, and here).

BusyBox Gets Busy with Verizon

The Software Freedom Law Center (SFLC) has announced that it has filed yet another lawsuit on behalf of its clients Erik Andersen and Rob Landley (the two principal developers of the BusyBox open source utility) alleging copyright infringement based on a violation of version 2 of the GNU General Public License (GPL). The defendant in this latest lawsuit is Verizon Communications. The lawsuit against Verizon is the fourth in a recent string of suits brough by the SFLC on behalf of Andersen and Landley. However, unlike the previous suits brought against Monsoon Multimedia, Xterasys Corporation and High-Gain Antennas, this suit is the first such suit against a major public company.

The complaint against Verizon was filed December 6, 2007 in the United States District Court for the Southern District of New York and is available online at — Erik Andersen and Rob Landley v. Verizon Communications, Inc. The complaint is similar in many respects to the complaints filed in the Monsoon Media, Xterasys and High-Gain suits, but specifically centers on Verizon’s distribution of a third party product containing the BusyBox open source software utility (as opposed to a product developed by Verizon).  In particular, the complaint against Verizon alleges that Verizon distributes the Actiontec MI424WR wireless router to customers of its “FiOS” fiber-optic Internet and television service and that the router contains the BusyBox software. Under the terms of the GPL, the complaint further alleges that Verizon is obligated to provide the source code of the BusyBox software to recipients of the Actiontec router. According to the lawsuit, Verizon continues to distribute BusyBox without source code in violation of the GPL, despite having been contacted by SFLC. The complaint likewise seeks an injunction against Verizon and requests that damages and litigation costs be awarded to the plaintiffs.

It remains to be seen if the current case against Verizon will be settled out of court (as happened in the case against Monsoon) or continue on and become the first lawsuit alleging a violation of the GPL ever to go to trial in the U.S. Regardless, this case is a highly significant indication that Andersen and Landley (and the SFLC) appear increasingly willing seek to enforce the GPL against alleged violators in court rather than pursuing out of court settlements. As I mentioned in connection with the previous BusyBox suits, now is the time to take steps to identify whether and to what extent your organization is using BusyBox and other open source software and to ensure that you are in compliance with the open source software licenses applicable to that software.

BusyBox Back For More

The Software Freedom Law Center (SFLC) has announced that it has filed two additional lawsuits on behalf of its clients Erik Andersen and Rob Landley (the two principal developers of the BusyBox open source utility) alleging copyright infringement based on a violation of version 2 of the GNU General Public License (GPL). The defendants in these new lawsuits are Xterasys Corporation (a manufacturer of wireless routers and other networking products) and High-Gain Antennas, LLC (a manufacturer of antennas and other products for use in wireless networking applications). The lawsuits are the second and third GPL enforcement lawsuits respectively ever filed here in the U.S. The first such lawsuit, filed against Monsoon Multimedia in September of this year, was quickly settled out of court on October 30. Both of the current lawsuits were filed November 19 in the United States District Court for the Southern District of New York.

The complaints in the current lawsuits are available online — “Erik Andersen and Rob Landley v. High Gain Antennas, LLC,” (case number 07-CV-10456) and “Erik Andersen and Rob Landley v. Xterasys Corporation” (case number 07-CV-10455). In substance, the current complaints read very similarly to the complaint filed in the Monsoon Media suit. Each of the current complaints alleges that the defendant continued to distribute BusyBox in violation of the GPL (and applicable copyright law) without also distributing the source code for BusyBox, despite having been contacted by SFLC. Each complaint likewise seeks an injunction against the defendant and requests that damages and litigation costs be awarded to the plaintiffs.

These cases are significant in that if either is ever heard before a judge, it will be the first time that a lawsuit alleging a violation of the GPL has gone to trial in the U.S. While these cases may take the route of the Monsoon Media suit — which settled out of court with Monsoon agreeing to remedy its violation of the GPL, ensure future compliance, and financially compensate the plaintiffs — these cases remain highly significant for a number of reasons, not the least of which include:

– It is widely suspected that the list of BusyBox users in violation of the GPL is quite long and that the BusyBox developers have already quietly settled out of court with a number of the companies on this list. With these two new lawsuits, it is clear that the earlier suit against Monsoon Multimedia is not a mere anomaly and that the BusyBox development community is not content to sit quietly as these alleged violations continue. Users of BusyBox are now on notice that they should take care to ensure that they are in compliance with the terms of the GPL as it applies to BusyBox.

– Ensuring compliance with the GPL (and other open source licenses) starts with knowing when and where software subject to the GPL and other open source licenses is in use in your organization. Implementing and maintaining an open source software license compliance program is key to gaining this knowledge. Cases such as these brought by the BusyBox developers underscore the growing importance of implementing and maintaining such a compliance program (and the growing risks posed by not doing so).

– The time line in each of the BusyBox cases has evolved from initial contact by the plaintiffs regarding the alleged violation through to the filing of a lawsuit at a very rapid pace. Unlike many of the “private” open source compliance actions brought in the past by the Free Software Foundation (FSF) it would appear that the SFLC is willing to act quite aggressively in pushing its grievances. Organizations need to respond quickly and decisively to any complaints about violations of open source software licenses, by the SFLC or any other organization.

Now more than ever, if your organization is not taking steps to identify and correct violations of open source software licenses on its own terms, others like the SFLC appear increasingly willing to do so for you on theirs. Remaining ignorant of existing open source software usage and potential open source software license violations, it would seem, is no longer bliss.

Affero GPLv3 Released

The Free Software Foundation (FSF) today announced the release of version 3 of the GNU Affero General Public License (AGPLv3). AGPLv3 is based on version 3 of the GNU General Public License (GPLv3), but has an additional term to allow users who interact with AGPLv3-licensed software over a network to receive the source code for that software (and modifications to that software). In particular, AGPLv3 modifes Section 13 of GPLv3 as follows:

While GPLv3 generally covers the distribution to third parties of modifications to software under GPLv3, it does not cover the situation where a user modifies software covered by GPLv3 and runs the modified software on a network without actually distributing a copy of the software. As a result, users making the functionality of software subject to GPLv3 available over a network (but not also distributing the software itself) are not required by GPLv3 to make available the source code to any modifications they have made to that software. This means that modifications to software covered by GPLv3 by companies operating operating under a software as a service (SaaS) or application service provider (ASP) model need not be released.

The fact that ASP/SaaS models are quickly becoming prevalent in the software industry and that the final draft of GPLv3 released earlier this year did not close this so-called “ASP Loophole” (or, if you prefer, “SaaS Loophole”) has led to a good deal of concern among open source commentators. The FSF intends that AGPLv3 will address these concerns by providing a means for developers to close this loophole. In particular, under AGPLv3, anyone running a copy of a modified version of software covered by AGPLv3 on a network must also make available a copy of those modifications as well (regardless of whether they have actually distributed the modified software itself). In their press release, the FSF notes that AGPLv3 is compatible with GPLv3 and, as a result, programmers who want to use the AGPLv3 for their work can also take advantage of software available under GPLv3. Given the additional coverage provided by AGPLv3, the FSF recommends that people consider using the AGPLv3 for any software which will commonly be run over a network.

Let the Games Begin! — SFLC Files First Ever Lawsuit Alleging Violation of the GPL in the US

It was announced earlier today that the Software Freedom Law Center (SFLC) has filed a lawsuit on behalf of two of its clients alleging copyright infringement based on a violation of version 2 of the GNU General Public License (GPL). This lawsuit is significant in that it represents the first lawsuit ever filed in the U.S. based directly on a violation of the GPL.

The complaint was filed in the U.S. District Court for the Southern District of New York against Monsoon Multimedia, Inc. on behalf of Erik Andersen and Rob Landley. Messrs. Andersen and Landley are two of the principal developers of BusyBox, a popular set of open source utilities commonly used in embedded systems and often referred to as “The Swiss Army Knife of Embedded Linux.” Monsoon Multimedia is a provider of, among other things, digital video and multimedia products and technology. It should come as no surprise that Monsoon’s products include quite a bit of embedded software.

The complaint itself alleges that Monsoon has violated the GPL by distributing elements of the BusyBox software as part of Monsoon’s own products without ensuring that each downstream recipient of the products is provided with access to the source code of the BusyBox software. In this regard, the case alleges a fairly straight-forward GPL violation relying on the core “copyleft” requirements of the GPL — namely, that anyone distributing software licensed under the GPL must make a copy of the source code to that software available to recipients of the software. The SFLC claims that Monsoon Multimedia’s own web site publicly acknowledges that Monsoon’s products contain elements of the BusyBox software, but that Monsoon has not provided any recipients of those products with access to the underlying BusyBox source code, as is required by the GPL. The complaint requests that damages and litigation costs be awarded to the plaintiffs and seeks an injunction against Monsoon Multimedia.

While lawsuits have previously been brought in Germany and other countries successfully enforcing the GPL (and even obtaining injunctions against violators of the GPL), this is the first such lawsuit to be filed in a court in the U.S. That said, it is worth noting that this case is still in its very early stages, and we will have to wait for additional facts to emerge as Monsoon responds to the complaint and additional filings are made in the case. At this point it really remains to be seen whether the case will ultimately progress to the point where it results in any binding legal precedent regarding the GPL or whether it will settle out of court. This is, however, likely not the last we have heard from this case. Stay tuned. . .

[For those interested in the details, the lawsuit is titled Erik Andersen and Rob Landley v. Monsoon Multimedia Inc., case number 07-CV-8205 and will be heard by Senior District Judge John E. Sprizzo of the United States District Court for the Southern District of New York.]