This article serves to alert any person in any company that distributes computer software or devices which contain software: your software may be susceptible to a copyright infringement lawsuit. We predicted that the lawsuit filed in September on behalf of BusyBox would open the door to more litigation over alleged violations of the GNU General Public License (“GPL”). As expected, on November 20th, the Software Freedom Law Center, attorneys in the original BusyBox v. Monsoon Multimedia case, announced the filing of two new suits on behalf of the software developer. Both defendants, High-Gain Antennas and Xterasys, manufacture access points and related wireless networking products that allegedly contain modified BusyBox code. According to the complaints, both manufacturers have refused to distribute source code of their modifications to the BusyBox code in violation of the GPL.
A pattern is clearly emerging in the SFLC/BusyBox lawsuits: settlements. The suit against Monsoon settled at the end of October, just before the High-Gain and Xterasys were filed. Then, on December 7, the SFLC filed yet another suit, this one against Verizon. Ten days later, the Xterasys case settled.
The Anderson v. Verizon case (Anderson is one of the developers of BusyBox) may represent a significant change in this pattern. Though rumored to be in settlement discussions, Verizon has the resources and may have the incentive to litigate the matter to resolution rather than settling. If so, some early case law on these issues may finally emerge. This case fits the model of the earlier cases, claiming copyright infringement for unlicensed distribution of the Busybox software, allegedly included in Actiontec-branded routers distributed to Verizion Fios customers.
While waiting for possible court rulings, the SFLC lawsuits themselves are significant for two reasons. First, they evidence a new, more aggressive attitude in some parts of the Open Source community. Second, the complaints demonstrate that the SFLC is anxious to counter precedence set by the Jacobsen v. Katzer case, a non-SFLC case, implying that injunctive relief is unavailable as a remedy when the infringed software is Open Source. Injunctive relief is an important copyright infringement remedy because it gives the copyright owner the ability to shut down the infringing business.
The SFLC complaints contain only one count, each entitled "Copyright Infringement." Due to the unique nature of copyrighted materials, courts are more willing to grant injunctive relief to protect copyright holders than in other cases. Significantly, none of the cases contain contract claims or requests a specific amount of money damages. This may be because the code, like all Open Source, is given away, making it difficult to establish how the copyright holders were monetarily harmed.
The SFLC may not have included contract claims, fearing that the court would recast the complaint as a contract dispute. This happens frequently in software disputes when the breach involves something other than exceeding the scope of the license grant. That is also exactly what happened in Jacobsen v. Katzer.