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Brief Open Source Lawsuit is Settled

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Brief Open Source Lawsuit is Settled Powered By Docstoc
					                       c   Intellectual Property & Technology
                           FuLBriGHt BrieFinG                       • March 20, 2008
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                       Open SOurce/GpL LawSuit SettLed
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                           March 17 marked the settlement of the last of four lawsuits relating to
                       copyright infringement claims and enforcement of an open source license known
                       as the GNU General Public License (“GPL”). Although no U.S. court has ruled on the enforceability of
                       the GPL, these complaints underscore the need for anyone using open source software to understand these
                       licenses.

                           Background – What Is Open Source? “Open source” software is typically free software whose source
                       code (the human-readable part of the computer code) is made available to everyone, to use or to modify.
                       Although the software is free, users receive a license, not ownership. Like standard “commercial” software,
                       an open source license agreement describes how licensees can use the code and includes various disclaimers
                       and—sometimes—additional restrictions. There are a large number of open source licenses, ranging from
                       simple half-page “AS IS”-type licenses to multiple-page licenses governing how to use the code and the
                       effects on the user’s intellectual property that changing the source code can have.1 The GPL is one of the
                       longer, more complex open source licenses, requiring, among other things, that the source code must be
                       made freely available to anyone who is interested. The GPL also prohibits users from copying, modifying,
                       sublicensing or distributing the program except in accordance with the GPL’s terms.

                            Why Would Anyone Use Open Source? Open source software can be an attractive option because it is
                       frequently (i) free—no cost constraints; (ii) available right now (upon downloading)—no time delays; (iii)
                       reviewed by other people, who have located and fixed any bugs—minimizing testing and patch delays; and
                       (iv) modifiable to meet the user’s unique needs—enabling users to create customized solutions. Open source
                       is likely to become more prevalent in the next few years: Research firm Gartner, Inc. estimated that, by
                       2011, at least 80% of commercial software will contain significant amounts of open source.2

                            There are also potential drawbacks to open source. It typically requires a fairly high level of technical
                       skill to use, and it still needs to be updated and maintained like other software. Thus, before adopting
                       open source, users should consider who will create needed changes to the code and who will troubleshoot
                       problems with the software. Open source software, precisely because the source code is available to anyone,
                       could create security holes in a user’s organization. Open source software is typically licensed on an “AS
                       IS” basis, leaving users with certain legal risks, such as the code may infringe a third party’s intellectual
                       property rights. Furthermore, some open source licenses—like the GPL—can result in the user losing the
                       value of some of its own intellectual property because the GPL includes mandatory royalty-free licensing
                       requirements for any intellectual property rights in any user-added changes (the so-called “viral nature” of
                       the GPL).


                       1 In 2003, defense contractor The MITRE Corporation prepared a study for the Department of Defense and DoD’s use of open source:
                         “Use of Free and Open-Source Software (FOSS) in the U.S. Department of Defense,” ver. 1.2.04 (Jan. 2, 2003). The study listed 43
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                         different open source licenses, and included the text of each. The study is located at http://www.nas.nasa.gov/Resources/Software/
                         Open-Source/dodfoss.pdf (last visited Mar. 19, 2008).
                       2 Brodkin, “Open Source Impossible to Avoid, Gartner Says,” Network World, Sept. 20, 2007, http://www.networkworld.com/
                         news/2007/092007-open-source-unavoidable.html (last visited Mar. 19, 2008).
Page                                                                                  Open SOurce/GpL LawSuit SettLed



      The Lawsuit. The lawsuit that settled on March 17 was the last of four very similar complaints filed
  in the Southern District of New York. The plaintiffs were two software developers who created a set of
  Unix® utilities (known as “BusyBox”) that they licensed pursuant to the GPL. According to the complaint
  in the fourth matter,3 Verizon Communications obtained wireless routers from Actiontec, which Verizon
  distributed to its Verizon FiOS® (Fiber Optic Service) customers. The complaint alleged that the Actiontec
  routers contained BusyBox, but Verizon did not make the source code freely available to the public. The
  one-count complaint alleged that Verizon infringed the developers’ copyright in BusyBox because Verizon
  was not acting in accordance with the GPL.

      The Settlement. The March 17 settlement contains four elements:
      1. Actiontec has agreed to appoint an open source compliance officer;
      2. Actiontec will publish the source code for BusyBox on the Actiontec web site;
      3. Actiontec will use “substantial efforts to notify previous recipients of BusyBox from Actiontec and its
         customers, including Verizon, of their rights to the software under the GPL”4; and
      4. Actiontec will pay an undisclosed sum to the developers.

      Verizon was also part of the settlement. Although Actiontec was not a named defendant in the lawsuit,
  Actiontec reportedly “chose to take responsibility for remedying both their own and Verizon’s past violations
  and ensuring compliance in the future.”

      The three prior lawsuits by the BusyBox developers resulted in very similar settlements. All four
  lawsuits were filed by the Software Freedom Law Center on behalf of the BusyBox developers. The Software
  Freedom Law Center’s self-description is “provider of pro bono legal services to protect and advance free
  and open source software.”7 Consequently, open source software developers may file lawsuits for policy
  reasons, rather than the typical economic reasons, so users of open source can become defendants even
  though the economic circumstances might not otherwise suggest a significant risk of litigation.

  3 Andersen v. Verizon Communications Inc., No. 1:07-CV-11070-LTS (S.D.N.Y. filed Dec. , 2007).
  4 Press release, “BusyBox Developers Agree to End GPL Lawsuit Against Verizon,” Software Freedom Law Ctr., Mar. 17, 2008, located
    at http://www.softwarefreedom.org/news/2008/mar/17/busybox-verizon/ (last visited Mar. 19, 2008).
   Kerner, “Open Source Group is 4 for 4 on GPL Lawsuits,” InternetNews.com, located at www.internetnews.com/ bus-news/print.
    php/3734866 (last visited Mar. 19. 2008).
   Press release, “BusyBox Developers and High Gain Antennas Agree to Dismiss GPL Lawsuit,” Software Freedom Law Ctr., Mar. ,
    2008, located at http://www.softwarefreedom.org/news/2008/mar/0/busybox-hga/ (last visited Mar. 19, 2008) (the complaint was
    Andersen v. High-Gain Antennas, LLC, No 07-CV-104-LBS (S.D.N.Y. filed Nov. 19, 2007); press release, “BusyBox Developers and
    Xterasys Corporation Agree to Dismiss GPL Lawsuit,” Software Freedom Law Ctr., Dec. 17, 2007, located at http://www.software-
    freedom.org/news/2007/dec/17/busybox-xterasys-settlement/ (last visited Mar. 19, 2008) (the complaint was Andersen v. Xterasys
    Corporation, No. 07-CV-104 (S.D.N.Y. filed Nov. 19, 2007)); press release, “BusyBox Developers and Monsoon Multimedia Agree
    to Dismiss GPL Lawsuit,” Software Freedom Law Ctr., Oct. 30, 2007, located at http://www.softwarefreedom.org/ news/2007/oct/30/
    busybox-monsoon-settlement/ (last visited Mar. 19, 2008) (the complaint was Andersen v. Monsoon Multimedia Inc., No. 07-CV-820
    (S.D.N.Y., filed Sept. 19, 2007).
  7 Press release, “Software Freedom Law Center Appoints Two New Attorneys to Defend and Support Free and Open Source
    Software,” Oct. 31, 200, located at http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104& STORY=/www/story/10-31-
    2005/0004203769&EDATE= (last visited, Mar. 20, 2008).
                                                                                                                                       Page 


   Although no U.S. court has ruled on the enforceability of the GPL, these complaints and settlements
underscore the need for anyone using open source software to understand these licenses.

                                                                     c
    This article was prepared by Susan Ross (sross@fulbright.com or 212 318 3280) from Fulbright’s
Intellectual Property and Technology Practice Group.

                                                                    2
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