ABA Open Source Panel in New York

While much of the open source community was in San Francisco last week at the LinuxWorld Expo , I was in New York at the 2008 Annual Meeting of the American Bar Association (ABA) speaking at the “Life after GPLv3: New Developments in Open Source Software Licensing” event organized by the ABA Section of Intellectual Property Law. My presentation covered an update on the lawsuits filed over the past 12 months by the Software Freedom Law Center (SFLC) on behalf of their clients Erik Andersen and Rob Landley (the two principal developers of the BusyBox open source utility) against Monsoon Multimedia, Xterasys Corporation, High-Gain Antennas, Verizon Communications, Bell Microproducts, Inc., Super Micro Computer, Inc. and Extreme Networks alleging copyright infringement based on a violation of version 2 of the GNU General Public License (GPL) in connection with BusyBox. In addition to discussing the history and resolution of the BusyBox cases (including my involvement with several of the cases), I also highlighted the similarities and differences between these cases and past open source software license enforcement efforts outside of the courts by the Free Software Foundation (FSF) and Harald Welte of gpl-violations.org. The presentation materials are now available online. I understand that the ABA will be posting the materials from the other presenters at the event, as well as a podcast of the entire event, on the ABA website in the coming weeks.

Many thanks to Mark Wittow and Gloria Archuleta, co-charis of ABA IP Section for organizing the event and inviting me to speak. Thanks also to my co-presenters Terry Ilardi of IBM Corporation, Jim Markwith of Microsoft Corporation, and Gabe Holloway of Leonard, Street and Deinard, as well as the moderator of the panel discussion portion of the event, Sue Ross of Fulbright & Jaworski L.L.P.

BusyBox Settlement #2

The Software Freedom Law Center (SFLC) has announced that it has reached an agreement to settle and dismiss the lawsuit filed by Erik Andersen and Rob Landley, two of the principal developers of the popular BusyBox set of open source utilities, against Xterasys Corporation (a manufacturer of wireless routers and other networking products) alleging a violation of version 2 of the GNU General Public License (GPL). This leaves two pending suits by Andersen and Landley, against High-Gain Antennas, LLC (a manufacturer of antennas and other products for use in wireless networking applications) and telecommunications giant Verizon Communications.

As was the case with the settlement with Monsoon Multimedia, Inc., the terms of the Xterasys settlement were not released. However, based on the SFLC press release regarding the settlement, the terms appear to be nearly identical to those in the Monsoon case. While this is yet another case in which we will not see the establishment of binding legal precedent regarding the enforceability and legal interpretation of the GPL here in the U.S. (as has already taken place in Germany), it does appear that we are starting to see the establishment by the SFLC of a de facto precedent for settling cases alleging violations of the GPL. In each of its settlements to date, the SFLC has consistently imposed the following requirements on the defendant:

– The appoint an “Open Source Compliance Officer” to monitor and ensure GPL compliance;

– Publishing of the source code for the version of BusyBox previously distributed in violation of the GPL;

– Undertaking “substantial” efforts to notify previous recipients of BusyBox of their rights to the software under the GPL; and

– The payment of an “undisclosed amount” of financial consideration to the plaintiffs.

Of course, these settlement terms do not carry with them the same legal precedent as would a decision of a court of law. As a practical matter, however, by imposing a consistent set of settlement terms over time, the SFLC has begun to create a sort of standard for resolving future lawsuits alleging violations of the GPL. Defendants in future GPL violation lawsuits (and we are likely to see future suits) will not be legally bound to accept these terms and certainly will be free to attempt to forge their own paths to settlement. However, over time, the terms imposed by the SFLC are likely to represent an increasingly strong lure to those defendants to relatively quickly and cleanly resolve the GPL violation lawsuits against them through an accepted path of least resistance. Not legal precedent, but a strong practical guide for certain.

Stay tuned. The BusyBox cases are driving changes in the open source license enforcement landscape and open source compliance will need to evolve right along with those changes.

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.

And Just Like That, The Games End — First Ever GPL Lawsuit Dismissed

Just as quickly as it began, the Software Freedom Law Center (SFLC) has announced today that an agreement has been reached to dismiss the lawsuit filed by Erik Andersen and Rob Landley, two of the principal developers of the popular BusyBox set of open source utilities, against Monsoon Multimedia, Inc. alleging a violation of version 2 of the GNU General Public License (GPL). In the agreement to dismiss the lawsuit, the SFLC is reporting that Monsoon Multimedia has agreed to appoint an “Open Source Compliance Officer” within its organization “to monitor and ensure GPL compliance, to publish the source code for the version of BusyBox it previously distributed on its web site, and to undertake substantial efforts to notify previous recipients of BusyBox from Monsoon Multimedia of their rights to the software under the GPL.” The SFLC reports that the settlement also includes an “undisclosed amount” of financial consideration paid by Monsoon Multimedia to the plaintiffs.

The settlement is certainly a benefit for the parties involved in that it helps them move forward from what could have been a costly and prolonged litigation. However, while the BusyBox lawsuit will remain significant as first lawsuit ever filed in the U.S. based directly on a violation of the GPL, the settlement itself appears to have done little to advance the law surrounding the enforceability and interpretation of the GPL and open source licenses in general. Indeed, based on the research I did for my presentation on “Open Source License Enforcement Actions” at the Open Source Business Conference (OSBC) earlier this year, the terms of the settlement appear to be very standard and to closely track those sought by the Free Software Foundation (FSF) and other enforcers of the GPL in past out of court settlements. As a result, those of us in the open source legal community who had hoped that the BusyBox lawsuit might begin the process of establishing the type of binding legal precedent regarding the enforceability and legal interpretation of the GPL here in the U.S. that has begun to occur in Germany and other countries are once again left empty handed. Stay tuned, however, as this is likely not the last lawsuit we will see here in the U.S. to enforce the terms of the GPL.

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