On September 19th the Software Freedom Law Center, on behalf of the developers of BusyBox, filed suit alleging Monsoon Multimedia, Inc., makers of a TV time and place shifting recorder, failed to comply with the terms of the General Public License v2, the license at the heart of the "open source" movement. Its terms have never been tested in a U.S. Court. The plaintiffs alleged that Monsoon incorporated code from BusyBox , licensed under the GPL, into Monsoon's product, as allowed by the GPL, but then failed to make either Monsoon's or BusyBox's code available to its customers. Plaintiff’s allege this violates the GPL's reciprocity clause. It appears Monsoon wants to settle, but that the SFLC may not yet be willing to let them off the hook.

No matter how this case comes out, it is likely that the SFLC will be on the prowl for other cases. And its likely they will find them.

Here is a quick explanation of why that might happen.

The open source community speculates that there are hundreds of developers who have not released modifications to GPL code. Contrary to its assertions, the SFLC likely wants to counter the chilling effect of Jacobsen v. Katzer et al, decided in August in the Northern District of California. In that case, the court found that Jacobsen, an open source developer, was not entitled to a presumption of irreparable harm, a presumption which would attach to a claim of copyright infringement, because Jacobsen's claim sounds in contract, not copyright. That removed an important tool from Jacobsen's litigation arsenal. Even if Jacobsen ultimately wins, he lost the immediate leverage that a threatened injunction provides. And he will have a tough time proving damages under contract theories, since Jacobsen’s code is given away at no charge. The court found that the non-exclusive license amounts to a promise not to sue for copyright infringement and therefore only contract remedies are available. Though the license involved was the Artistic License, not the GPL, the question of a contract or a license is equally applicable to the GPL and the SFLC will want to establish that injunctive relief remains available to the thousands of developers who release code under the GPL.

Also, now that version 3 of the GPL has been released, there could be more enforcement action. Of particular importance are several new provisions which make GPLv3 compatible with other open source licenses. The GPLv3 is now compatible with most other open source licensing schemes. Up until now, the exact opposite was true. Projects which previously could not combine their code with GPL code are allowed to do so under a Section 7, Additional Terms of GPLv3, which allows a party to add disclaimers which vary from those required by the GPL. Most "academic" licenses, so-called because universities originally used them, contain specific disclaimers protective of the universities. They were thought to be incompatible with the GPLv2’s "copyleft" clause, which requires that software based on GPL code be re-licensed under the exact terms of the GPLv2. GPLv3 loosens this at requirement by allowing academic and other disclaimers which are otherwise consistent with GPLv3.

But that clause acts as a one-way door. Once software is licensed under the GPL, all future changes to that software must also be licensed under the GPLv3.

We think this loosening of the GPL could cause more parties to adopt its use, which could lead to more enforcement actions.