At the heart of the case is the BusyBox toolkit. According to its developers, BusyBox:

… combines tiny versions of many common UNIX utilities into a single small executable. It provides replacements for most of the utilities you usually find in GNU [libraries]. The utilities in BusyBox generally have fewer options …; however, the options that are included provide the expected functionality and behave very much like their GNU counterparts. BusyBox provides a fairly complete environment for any small or embedded system. … BusyBox has been written with size-optimization and limited resources in mind. It is also extremely modular so you can easily include or exclude commands (or features) at compile time. This makes it easy to customize your embedded systems.

Judging by the website and developers’ mailing list, the software appears to be developed by a small team of programmers. The actual source code is given away freely to anyone subject to the GPL.

The Complaint (PDF) alleges that the defendant, Monsoon, is using a modified version of BusyBox in a commercial embedded system without disclosing its changes to the source code. The suit is brought by two ‘lead developers’, who seek damages and an injunction.

Several interesting issues are raised by the action. First, is there a threshold of modification necessary to trigger the disclosure provision? One can envisage various de minimis modifications (branding, integration, variable changes, code formatting changes, library imports, etc) that should not necessarily require disclosure. It will be interesting to see whether this issue is addressed by the Court.

Second, what is the extent of disclosure required? Does the GPL ‘contaminate’ any associated product (in this case the Monsoon embedded system) in its entirety, does it only require disclosure of the GPL-licensed portion, or does it require disclosure only of those portions of the GPL code that have been altered or added to?

Third, what does disclosure entail? Must the actual source code be disclosed by Monsoon, or some equivalent? It seems arguable that the licence requires actual disclosure, but one could see an argument being mounted that ‘in substance’ disclosure is sufficient.

Fourth, how broad will the remedy be? If, as seems likely, the plaintiffs can make out a prima facie case of copyright infringement, will the Court order the defendants to cease distributing all instances of the embedded system and any products containing the embedded system? On a traditional analysis, the infringement extends to any article containing a copy of the copyright work, so the injunction should be similarly framed. However, if the defendant is in a position to excise the GPL code, can the remainder continue to be distributed? Similarly, what will the position be if the licence is treated as purely contractual — will only contractual remedies be available for its breach?

Finally, a procedural issue: given that the development is distributed across multiple programmers, how should the remedy be apportioned? Is it to be likewise distributed, or should the plaintiffs — who have alone chosen to risk an adverse costs order — be entitled to the entire verdict? If they are, must the proceeds be put back into BusyBox project development? You can bet that many nervous downstream vendors will be watching this one closely.

Update: Mark Radcliffe, a partner at DLA Piper, has authored a post commenting further on the remedial implications of the case; specifically, the issue of ‘what type of remedies (either contract or copyright) are available to licensors for breach of the GPLv2 … The major difference in remedies is that contract remedies are generally monetary damages, but copyright remedies are generally injunctive relief (the court orders a party to do something) as well as monetary damages. Clearly, open source licensors would prefer to obtain injunctive relief to require the licensee to comply with the terms of the license.’

(g) Granting any additional relief that may be available to [insert the 30 title of a person or body administering a reorganization or liquidation under the 31 law of the enacting State] under the laws of this State.

Although, by s 11 of the bill, these references are to be taken as referring to the trustee or liquidator under Australian insolvency law, it looks like the Attorney-General’s department forgot to fill out the Treaty template completely. I would be most aggrieved if it was enacted in its present form — never mind the woeful indentation and improper numbering formats. Such criticisms are not mere pedantry — from a federal legislature enacting law of definite application one expects better.

Well, it seems that some Gateway shareholders aren’t overly happy about this transaction, with two separate shareholder actions being initiated against the Gateway board last week, naming Acer as accessory. The substance of the allegations, relevantly contained in Gurt v Clarke (Case No CA3219-VCN) and Cin v Clarke (Case No CA3216-VCN), is as follows:

[1] ‘The Company’s directors breached their fiduciary duties to stockholders by approving the Merger Agreement and the transactions contemplated thereby, including but not limited to the Offer, and claims that these transactions are both unfair and coercive to the public stockholders in a sale of the Company’ …

[2] ‘The Company’s directors breached their fiduciary duties by failing to include certain information in the [offer document], which purportedly denies the stockholders a fully informed voluntary choice whether to approve the Merger Agreement or seek appraisal.’

As regards the second of these claims, it is unclear, from the statement of claim, just what this information was, and whether it was material, so we’ll have to wait and see how that one pans out. As regards the first claim, however, this seems more dubious on its face.

My first PC was a Gateway, so the brand holds a special place in my heart, but even on a generous valuation of the company it seems difficult to escape the conclusion that Acer paid too much, rather than too little, for the offeree. Gateway has struggled to compete with other large Original Equipment Manufacturers in the North American market — a decline which paralleled Dell’s rise to prominence and which began even before the .com crash. Hewlett Packard, meanwhile, has gone from strength to strength (corporate espionage scandal notwithstanding), while Lenovo has made strong inroads into the corporate market. Gateway, meanwhile, pulled out of the Malaysian, Singaporean, Japanese, Australian and New Zealand markets, and has done little since but produce a line of unremarkable laptops.

The Acer board appears to be placing a premium on Gateway’s right of first refusal over Packard Bell computers (a traditional rival of Acer). Indeed, Acer’s own shareholders have complained vocally that the price paid for Gateway was excessive. Speaking about post-merger concerns, Acer CEO Wang Jen-tang identified three issues:

The first is that we bought it too expensively. The second is that post-merger integration is normally always very difficult, so the integration will be too difficult, and the third is that Acer’s acquisitions in the past were mostly unsuccessful. … Regarding the criticism that the price is too high, I think whether a price is high depends on whether the buyer will in the end be able to realize synergies.

Interestingly, Acer’s CEO sought to justify the purchase in qualitative (synergistic) rather than quantitive terms. To put Acer’s offer into context, the previous year a private bidder offered USD $450 million for Gateway’s retail business, which the board rejected as inadequate consideration. (The bidder had previously sold eMachines to Gateway, which had subsequently lost value.) This suggests that there is at least some basis underlying the Acer shareholders’ discontent. In these circumstances, it seems difficult to say with any confidence that the Gateway directors acted without due care in accepting the favourable offer. It is therefore doubtful whether anything can come of the shareholder actions.

The video was filmed at a school party and depicted the teacher singing (poorly, one presumes). On YouTube, the video description read ‘Karaoke of the mental hospital’. Whether this in itself would be defamatory in a common law jurisdiction is an open question, as the caption seems to refer to the school setting, rather than the performer.

Interestingly, the teacher chose not to proceed against YouTube itself, claiming only €2 000 in damages. However, the Court exercised its discretion to reduce damages to €800 in view of the defendant’s age and the swiftness with which the video was taken down.

Curiously, the press release includes a sober warning — one more frequently associated with CrimeStoppers reports of serial killers and armed robbers:

If any member of the public has any information related to [some homicidal maniac], they should contact the Australian Federal Police or their local State police.

In this instance, the raid followed a tip-off from the perplexingly-capitalised Australian Federation Against Copyright Theft. This organisation is basically a lobby group funded by international movie studios, including Fox, Paramount, Village Roadshow, Sony Pictures, Universal and Warner Bros. It will be interesting to follow this case at trial, as it represents the first high-profile prosecution under the new criminal offences provisions that were introduced by the Copyright Amendment Act 2006 (Cth).

Ms Justice Kiefel was born in Queensland and studied at Cambridge. Her Honour has handed down some important trade practices, immigration and taxation decisions. According to this document on the Federal Court’s website:

Justice Kiefel is a member of the Board of the Key Centre for Ethics, Law, Justice and Governance, a Council member of the Queensland Academy of Arts and Sciences and a member of the Organising Committee for Congress of Comparative Law for the University of Queensland. Her Honour addressed the Year 12 students at All Hallows Convent in Brisbane on ‘A Judicial Career’.

Interestingly, this means that five of the seven justices presently constituting the High Court have been appointed by the current federal government.

Someone - fool, twit, dunderheard, call them what you will - has apparently agreed to pay more than $89m for a 60GB PlayStation 3. At least he or she doesn't have to pay the shipping cost - the seller is generously including UPS delivery in the price.…

Nearly half of all Americans who belong to online communities claim that the virtual world they inhabit is as important as the real world.…