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SFLC files GPL lawsuit on behalf of Busybox developers

By Bruce Byfield on September 20, 2007 (10:30:00 PM)

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The Software Freedom Law Center (SFLC) has filed a lawsuit against Monsoon Multimedia on behalf of two BusyBox developers. The suit alleges that Monsoon' s new product Hava, and its firmware, distribute code borrowed from BusyBox, a collection of UNIX utilities for embedded systems, but aren't making the source code available, as is required under the GNU General Public License (GPL). Daniel B. Ravicher, SFLC legal director, says, "This is the first time that either myself or anyone else that I know of in the United States has actually had to go to court to force compliance with the GPL."

The case centers on section 3 of version 2 of the GPL, which states that users may copy and distribute a program like BusyBox that uses the license, provided they make the source code available to customers, either by distributing it with their product or including a written offer to provide it. Monsoon is also alleged to be in violation of section 2b, which requires that "any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part therefore, to be licensed as a whole at no charge to all third parties." Hava appears to have an end-user license agreement that is contrary to both these requirements.

Monsoon Multimedia did not respond to requests for comment.

According to Ravicher, the SFLC was informed of the possible violations in early September. The SFLC analyzed Hava and "concluded that the product and firmware distributed BusyBox." Last week, the SFLC sent a letter to Monsoon outlining the alleged violations. When no reply was received, a lawsuit was filed in the Southern District of New York.

In such cases, Ravicher explains, an official response is usually given within a few days, if only to acknowledge official receipt of the notice. "If we had received anything that indicated that this was important and was on [Monsoon's] radar screen, our clients would not have felt forced to go to court. It's not something that anyone likes doing, but, when you get no response, you assume that that's what you have to do," Ravicher says. "We decided that if they weren't going to respond to our letter, then maybe they'd respond to what a federal district judge has to say."

The suit was filed on behalf of Erik Andersen and Rob Landley, two former project leaders of BusyBox. According to Landley, because BusyBox is not a legal entity and copyrights for contributions are held by the individuals who make them, the men had to file their case as individuals. By protecting their own contributions, Andersen and Landley can protect BusyBox as a whole.

This is not the first time that BusyBox has face violations of its license requirements. Until a couple years ago, the project used to maintain a Hall of Shame that listed as many as 18 possible violations in the hopes of encouraging compliance.

Unfortunately, the tactic was largely unsuccessful. For much of the project's early period, Andersen's father -- who happens to be a lawyer -- would write letters about possible violations, but as embedded systems grew increasingly common, the number of cases became prohibitive. When the SFLC opened in March 2006, Andersen and Landley were referred to the organization by Pamela Jones of Groklaw, and were among the Center's first clients. "I was overjoyed to have them take over the effort of enforcing the rights and freedoms that the GPL enshrined," says Andersen.

For Landley in particular, the enforcement of the GPL is more than a matter of personal rights. "I want the license to mean something," he says. "There's a reason that I choose to contribute to projects under the GPL2 and LGPL [GNU Lesser General Public License]."

Landley also worries that violations may discourage other developers from contributing to free software projects. He cites the case of former BusyBox developer Glenn McGrath, who believed he noticed a violation in an A-Link product a couple of years ago.

"He did his own enforcement effort," Landley recalls. "That took six months of his life, at the end of which he was so disgusted that he just stopped contributing. He walked away from open source development entirely because he was so burned out by the enforcement effort, and he didn't want to give free code to companies that were going to work him over like that." Explaining why he filed the latest case, Landley adds, "I didn't want that happening again."

At this point, it is still uncertain what damages Andrsen and Landley will seek. "Part of determining damage is what profit they have derived and what actual infringements have occurred," Ravicher says. The current lawsuit is intended to set the discovery process in motion, so that the SFLC and its clients have access to the source code and other information needed to determine the extent of the violations. The SFLC is also considering a request for a preliminary injunction to stop distribution of Hava while the case is being heard.

Bruce Byfield is a computer journalist who writes regularly for Linux.com.

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on SFLC files GPL lawsuit on behalf of Busybox developers

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The model to follow?

Posted by: Anonymous [ip: 129.240.235.122] on September 21, 2007 12:01 PM
The GPL Violations project has been enforcing GPL compliance for some time amongst corporate miscreants and freeloaders. Perhaps they show the way in this regard:

http://gpl-violations.org/

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"This is not the first time that BusyBox has violated license requirements."

Posted by: Anonymous [ip: 216.9.243.111] on September 21, 2007 06:03 PM

This is not the first time that BusyBox has violated license requirements.


Don't you mean:



This is not the first time that BusyBox has had their license requirements violated.

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SFLC files GPL lawsuit on behalf of Busybox developers

Posted by: nanday on September 21, 2007 06:05 PM
Thanks for the correction.

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SFLC files GPL lawsuit on behalf of Busybox developers

Posted by: Anonymous [ip: 74.142.1.248] on September 21, 2007 09:53 PM
The SFLC is using threats of copyright infringement prosecution under the GPL as a tatical matter to force Monsoon Multimedia to comply with a contractual covenant.The SFLC will never allow a federal court to examine the GPL on its merits.

If the suit goes forward (which I seriously doubt) the District Court will dismiss due to failure to state a federal claim. Contract claims are heard under the common law of state jurisdictions.
Failing to distribute source code is a contract breach and not a violation of a works permitted use under copyright law. There is obviously no provision under U.S. copyright law to force a party who has permission to copy and make derivative works to distribute those copyrighted works. Those actions are solely a contractual matter.
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:
“. . . recession of the contract only occurs upon affirmative acts by the licensor, and a breach by one party does not automatically result in recession 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).

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SFLC files GPL lawsuit on behalf of Busybox developers

Posted by: Anonymous [ip: 127.0.0.1] on September 21, 2007 11:53 PM
I don't see where the idea that the GPL is a contract comes from. It's just a statement of several permissions. It says "you can do foo, bar and baz". Even though some of these permissions are delimited (it's more like "you're welcome into my house, as long as your feet are clean", a conditioned permission, than "you must clean your feet", an obligation that might be established in a contract in return for some other obligation).

When they distribute the program in a way that is not permitted by the license, that's copyright infringement, for they're using a copyrighted work in a way that requires permission from the copyright holders without having secured that permission.

You're correct AFAIK (but IANAL) that there may be no grounds to demand Monsoon to publish the source code of the binaries they distribute. But this is not the only way for them to come to compliance with the GPL. They might as well stop distributing the program. And if they are indeed distributing the work in a way that is not permitted by the license (or licenses) they may have as to that work, then the judge ought to tell them that, under copyright law, they must stop distributing the program that way unless they obtain permission to do so. Pure and simple copyright, no contract law involved.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=936403

IANAL, don't take this as legal advice.

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SFLC files GPL lawsuit on behalf of Busybox developers

Posted by: Anonymous [ip: 85.73.196.43] on September 22, 2007 11:20 AM
Let's hope this will work out! It will open the road for several other cases where GPL is violated (see ffmpeg and mplayer's violations by commercial packages).

It is fair after all. Either the distributors will properly credit the developers and mention the existance of the free alternative, or they should be forced to pay a lot of money for distributing copyrighted software without permission. Money which can be used to fund the open source project and put more money into SFLC's pool form chasing more violations. And oss projects definitelly need money!

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