Yesterday the Software Freedom Law Center (SFLC) announced that they will be acting on behalf of the authors of Busybox in a copyright violation suit against Monsoon Multimedia a manufacturer of electronic devices. The filing (in a pdf) is here. The SFLC, if you haven’t heard of them before, is a legal organisation which offers support to the FLOSS community. Eben Moglen, co-author of the GNU General Public License, is its Chairman. Busybox is a free software project released under the GPL that provides miniature versions of common UNIX utilities, especially useful for developers of device-embedded software.
So what’s the problem? Well, its first public stirrings came in a thread on the official discussion forum devoted to Monsoon’s video streaming device the Hava. The thread-starter asked if the device ran Linux. Other posters soon chipped in saying that, as far as they could see, it ran a system based on Busybox and the Linux kernel. This was somewhat surprising, as the Hava web site does not mention this fact, and no source code to this software is provided, as one would expect if Monsoon were distributing GPL’d software in compliance with the licence. Soon a moderator on the board acknowledged that there was indeed GPL’d software in the Hava, and that they would be trying to organise source distribution as soon as possible. He added, however, that the posters who had discovered the GPL’d software had done so in violation of their End User Licence Agreement…
You can read the entire exchange here. If the posters (including the Monsoon company moderator) are correct and the Hava contains GPL’d code, then it is difficult to see how the SFLC’s suit can fail. In fact, it would seem to be be such a cut and dried case that it makes me wonder how it ever got as far as the SFLC filing suit. The usual outcome in cases such as this is that the SFLC (or previously the FSF) would inform violators of the GPL of the problem on behalf of the software’s authors. The distributor would then - almost without exception - remedy the problem. In most cases this would simply involve making source code available from their web site. The process worked so well that it was almost a problem in itself; when people ask whether the GPL is enforceable in court there is an almost complete lack of precedent.
Some opponents of the GPL argue that it is a contract, and that further it is a potentially ineffective one as there is no overt agreement on the part of those who take up GPL’d software. Proponents often point out in response that GPL’d software is a copyright work, and that the default situation is therefore that you cannot adapt, copy or distribute it without a licence. The GPL, they say, is a possible licence, provided to anyone at all who chooses to conform to its conditions. You can take it or leave it, but if you leave it you have no route to legal adaptation or distribution of the software. Nevertheless opponents continue to argue that the quid pro quo of ‘licence for conformance’ does constitute a contract…
In practice, of course, all of this argument is profitless. The fact is that up to now people have behaved as though the GPL is an effective tool for ensuring software freedom, and to that extent it is, regardless of the near-philosophic discussions that continue to spiral around it concerning status, consideration, performance and rescission. The case against Monsoon is unusual in that it is a real public test for the GPL and the widely held view that those who violate it can be legally pursued using only copyright law. Perhaps the SFLC felt that it was time to develop some real precedent on the issue. Whatever the case, both sides of the debate will watch this case with interest.
The District Court (E.D.N.Y.) will dismiss the SFLC complaint since it is a simple contract claim and not a scope of use infringement claim.
1.) There is no “automatic” contract rescission under New York State common
law. The same District Court in which the SFLC has chosen to file its claim has ruled:
“. . . 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).
2.) A Federal Court of Appeals has ruled a that a copyright contract rescission claim in federal court is preempted by 17 USC sec. 301(a):
“Because Santa Rosa seeks rescission of his contract, if we were to grant him the relief that he sought, we would be required to determine his ownership rights by reference to the Copyright Act. In such a case, there is little question that we would be merely determining whether Santa Rosa was entitled to compensation because of “mere copying” or “performance, distribution or display” of his recordings. Data Gen. Corp., 36 F.3d at 1164. As such, 17 U.S.C. § 301(a) preempts Santa Rosa’s rescission claim.”; Santa-Rosa v. Combo Records, 05-2237 (1st Cir. Dec. 15, 2006).
Thanks for the assessment, Daniel. I think I also saw that exact comment on OSI License Discuss, as well as Linux.com and Usenet. Am I right in thinking you are the Daniel Wallace who unsuccessfully brought an anti-trust case against the FSF back in 2005?
Of course, events have moved on in the last few days. The reconciliatory noises made in the original thread have been followed up by an apology from Monsoon for violating the GPL, although its specifics reveal there is still some confusion about the terms of the GPL in the Monsoon camp. A day later, Daniel Ravicher of the SLFC responded saying that he welcomes Monsoon’s acknowledgement of the violation. However…
Ravicher’s comments support the view that the SFLC are making a public point with this action.