a couple notes on the new Busybox GPL lawsuit

Posted on by Luis Villa

Just read the complaint in the GPL violation lawsuit filed today on behalf of Busybox. Couple things jumped out at me:

  • This is exactly what you think it is: a very straightforward “you are distributing binaries without the source, which you are not licensed to do” case. Nothing complicated here; if the license is valid, Busybox wins, if the license is not valid, Busybox does not win. As a result, the complaint is also a very straightforward document- here is what the license says, here are their options, here is what the license says must occur if the distributor of the copyrighted work doesn’t comply.
  • Traditionally FSF and others who have encountered GPL violation issues have taken the slow and patient approach- working with the various parties over a period of time to come to an amicable conclusion. In contrast, this lawsuit is not only very public, but happened incredibly quickly- the complaint says that the Defendants were first notified that they were in violation on August 28th- not even a month ago. It looks like the defendants have not responded at all, which if I had to guess would be the reason the lawsuit was filed. Still, sort of surprising (given how these things have gone in the past) that it has happened so quickly- I would be interested to see if SFLC or Busybox comments on why it worked out this way.
  • You can see a hint of how SFLC will pursue this in the very first paragraph of the ‘Factual Background’- besides the obvious legal arguments about the validity of the license, the paragraph notes that “BusyBox is … used in countless products sold by more than
    100 manufacturers all over the world, including IBM, Nokia, Hewlett-Packard, and Siemens.” If this actually goes to trial, it is almost certain that those in the courtroom will hear it noted repeatedly that many Fortune 500 companies use Busybox under the terms of the GPL, and profit from it. A decision in favor of the GPL will be portrayed as being a decision in favor of commerce and industry, not just a decision in favor of an abstract license. Is this supposed to matter? No. Does it? Often, yes, it does- judges and juries are only human.

Published by Luis Villa

25 thoughts on “a couple notes on the new Busybox GPL lawsuit”

  1. to court. But in this case the lawsuit was filed less than a month after SFLC first contacted the defendant, Monsoon Multimedia, about its violation of the license. Luis Villa suggests a couple of possible reasons they moved so quickly. One is thatMonsoon failed to respond to the SFLC’s letters, leaving them little choice but to go to court. Another factor is the recent Jacobsen decision, which called into question the enforceability of open source software licenses. The SFLC may have felt its chances of winning on appeal were not as good

  2. to court. But in this case the lawsuit was filed less than a month after SFLC first contacted the defendant, Monsoon Multimedia, about its violation of the license. Luis Villa suggests a couple of possible reasons they moved so quickly. One is thatMonsoon failed to respond to the SFLC’s letters, leaving them little choice but to go to court. Another factor is the recent Jacobsen decision, which called into question the enforceability of open source software licenses. The SFLC may have felt its chances of winning on appeal were not as good

  3. to court. But in this case the lawsuit was filed less than a month after SFLC first contacted the defendant, Monsoon Multimedia, about its violation of the license. Luis Villa suggests a couple of possible reasons they moved so quickly. One is thatMonsoon failed to respond to the SFLC’s letters, leaving them little choice but to go to court. Another factor is the recent Jacobsen decision, which called into question the enforceability of open source software licenses. The SFLC may have felt its chances of winning on appeal were not as good

  4. to court. But in this case the lawsuit was filed less than a month after SFLC first contacted the defendant, Monsoon Multimedia, about its violation of the license. Luis Villa suggests a couple of possible reasons they moved so quickly. One is thatMonsoon failed to respond to the SFLC’s letters, leaving them little choice but to go to court. Another factor is the recent Jacobsen decision, which called into question the enforceability of open source software licenses. The SFLC may have felt its chances of winning on appeal were not as good

  5. There’s usually not much lag time between a given app being revised by its maintainers and an updated PortableApps.com version appearing on the site; right now there’s a portable version of both Firefox 2.0.0.11 and Firefox 3 Beta 1 Revision 2. 47.Luis Villa’s Open Source BlogLuis Villa, a Columbia University law student, posts his ramblings on free software and law, reads complaints, and sheds light on what they might mean. The site is a lesser luminary than Groklaw but occasionally shares some of the same insights.

  8. […] Posted Sep 21, 2007 0:54 UTC (Fri) by subscriber louie (#3285) [Link] It has been suggested that this is a strategic response to the Jacobsen case, which suggested that the Artistic License was weak in a way which might impact all free/open licenses. I’ve blogged about the case a bit here, here, and here. […]

  9. Why would the Defendants not release the source to the busybox component of their product? They’ve probably only done minor tweaks to it, if they’ve actually modified it at all, and releasing it would not be releasing any trade secrets.
    Sounds like a storm in a teacup, and that they just haven’t
    got round to releasing it yet (they were notified only 3 weeks ago).
    They might be working on getting all GPL code in their product separated and nicely packaged?

  10. Good question. It is completely plausible that they still could. Of course, if that was their intent, they could have responded to the busybox folks at some point after the two times that they tried to contact them- I’m guessing that it is the lack of response that is problematic, more than anything else.

  11. I don’t think it is telling the whole story to say “if the license is not valid, Busybox loses.”

    If the license is valid, but the defendant is found to be in compliance by the court, Busybox loses.
    If the license is valid, but the defendant is not in compliance, the defendant loses.
    If the license is not valid, the defendant loses.

    The only possible legal right the defendant has to make copies of Busybox is the GPL. Thus, if the GPL is not valid, no permission exists and they are committing copyright infringement. The only way they get that permission is if GPL is valid *and* they comply with its terms.

  14. Interesting thought here.. you might argue that the GPL ‘has never been tested in court’, but there are certainly some very big companies with vast armies of lawyers who are very, very sure that the GPL is valid.

    If companies like IBM or Redhat or Novell believed that the GPL was not valid, that would leave them with _NO_ valid license to distribute Linux and other GPL-licensed code. Is the entire business-model of Redhat based on large-scale copyright infringement? Completely unthinkable!

  15. 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).

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