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September 21, 2007
Andersen v Monsoon Multimedia Inc: Enforceability of the GPL to be Tested in US Court
The GNU General Public License (‘GPL’) is about to be tested in a United States court. Two developers have brought suit against a company using open source software in its commercial product without disclosing the downstream source code. Their cause of action is copyright infringement — that is, that the defendant’s conduct falls outside the scope of permission granted by the GPL and otherwise constitutes infringement.
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.’
Posted by Jaani at September 21, 2007 4:47 PM
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