The Software Freedom Law Center (“SFLC”) continued its series of copyright infringement lawsuits against companies distributing “open source software” embedded in their products allegedly in violation of the license governing the open source software. The SFLC’s early lawsuit targeted Monsoon Multimedia, Inc. (see Oct. 2007 Wildman Harrold Bulletin), claiming that Monsoon had distributed “Busybox” in violation of the General Public License (“GPL”) and therefore infringed the underlying copyright in the Busybox software. The SFLC followed on the heels of the Monsoon case with three similar suits (also claiming infringement of the Busybox copyright) against High Gain Antennas, Verizon and Xterasys (see Dec. 2007 Wildman Harrold Bulletin). Some of these suits have settled, perhaps providing funds to fuel the next round of litigation.

In December 2009, the SFLC filed its most ambitious suit, again claiming infringement of the Busybox copyright, but this time naming 14 defendants including Best Buy, Samsung, Westinghouse, JVC and Western Digital. According to the complaint, these hardware manufacturers have refused to distribute the source code of their modifications to the BusyBox code in violation of the GPL. This case fits the model of the earlier cases, claiming copyright infringement for unlicensed distribution of the Busybox software, allegedly included in the defendants’ electronics products such as HDTVs, DVRs, wireless access points, Internet routers, and digital music players.

While waiting for possible court rulings, the SFLC lawsuits are significant for two reasons. First, they evidence a new, more aggressive attitude in some parts of the open source software community. Second, the complaints demonstrate that the SFLC is anxious to bolster precedence set by Jacobsen v. Katzer, a non-SFLC case decided by the influential Court of Appeals for the Federal Circuit. If the rationale of that court is extended to apply to GPL-licensed software, like BusyBox, injunctive relief would be added as an important enforcement tool available to open-source advocates. Injunctive relief is an important copyright infringement remedy because it gives the copyright owner the ability to potentially shut down the infringing business.

The SFLC complaints contain only one count, each entitled “Copyright Infringement.” Because of the unique nature of copyrighted materials, courts are more willing to grant injunctive relief to protect copyright holders than in other cases.