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GPL defenders say: See you in court

The Software Freedom Law Center files suit--and could roil the waters for more folks than just the single defendant.

A legal team enforcing the most widely used license in the open-source and free software movement has shown that it's not afraid to take its cases all the way to court.

For years, violations of the General Public License, or GPL, have been met with quiet discussions to resolve compliance problems that can result when open-source software is used improperly. Now, however, the Software Freedom Law Center is taking a hard-line approach, filing a copyright infringement lawsuit against Monsoon Multimedia for allegedly failing to abide by requirements of the GPL.

Dan Ravicher, SFLC's attorney on the case, said the suit isn't part of a broader effort to give GPL enforcement a stronger legal foundation. But the action has repercussions for a much larger audience than just the single defendant.

"There still appear to be flaming examples of either indifference to or outright disregard for the GPL," said James Harvey, an attorney with Hunton & Williams who is not involved with the suit. "I think those flaming examples will increasingly be called to order by somebody, whether SFLC, a copyright holder or someone else in the open-source ecosystem."

After the SFLC filed suit on September 20, Moonsoon said it would comply with the GPL. But that's not enough to call off the lawyers.

"Simply coming into compliance now is not sufficient to settle the matter, because that would mean anyone can violate the license until caught, because the only punishment would be to come into compliance," Ravicher said, though he declined to say what other actions the SFLC is seeking.

And the SFLC doesn't want to be a pushover. "If you start getting a reputation for being a pansy, then people are going to conclude they don't have to do anything," he said.

Ravicher co-founded the SFLC along with one of the biggest legal guns in the free and open-source software arena--Eben Moglen, the Columbia Law School professor who for years represented GPL creator Free Software Foundation and who also oversaw the creation of the new GPL version 3. The center initially was funded by the Open Source Development Labs--a consortium now called the Linux Foundation--and also is sponsored by Linux open-source allies including IBM, Hewlett-Packard and Red Hat.

The center's willingness to sue Monsoon isn't the first recent example of legal assertiveness on the part of free and open-source players. In July, Microsoft sought to distance itself from a provision in the newly released GPLv3, but in August, the Free Software Foundation--which the SFLC represents legally--countered with a strongly worded statement. "We will ensure--and, to the extent of our resources, assist other GPLv3 licensors in ensuring--that Microsoft respects our copyrights and complies with our licenses," the foundation said.

Hackles raised
The Monsoon dispute involves software called BusyBox, a collection of utilities tailored for devices with tight memory constraints. It's governed by version 2 of the GPL, which permits anyone to see, modify and distribute the software, as long as modifications are also released under the GPL. This is the quid pro quo arrangement that attracted Linux kernel leader Linus Torvalds: anyone can benefit from a freely available software project, but changing it requires them to give back the fruits of their own labor.

The license also requires anyone distributing GPL software, in an executable form that a computer can run, to make the complete source code available. One example: Cisco Systems subsidiary Linksys, which shares the GPL software used in its wireless networking equipment.

"If you start getting a reputation for being a pansy, then people are going to conclude they don't have to do anything."
--Dan Ravicher, attorney, SFLC

Monsoon's Hava product line lets customers record video and watch it on multiple PCs or over the Internet. In August, a Hava Forum discussion began on whether the systems used Linux, which like BusyBox is governed by the GPL. A Hava support representative whose screen name is Gary-MM said in the discussion: "I have a little secret to let you in on--Hava runs Linux! Yes, much of the source is GPL."

But the interaction turned frosty. "Some of you appear to be violating the terms of the End User License Agreement," Gary-MM said of efforts to deduce whether GPL software was used in Hava. (Those efforts included finding the text "BusyBox" in the Hava software.) "Seems to me that some of you have just come out blatantly admitting you are reverse-engineering the firmware--or trying to."

Although Gary-MM later said he was just "pokin' a bit of fun at you" without intending any threat, "adversarial" forum postings and the company's lack of response to a September 11 letter from SFLC led to the suit.

"Most of the time we get a very immediate response to our notification of the issue, and the parties work in good faith to resolve it quietly, discreetly and respectfully," Ravicher said, adding that the center has handled more than 50 enforcement matters on behalf of BusyBox. Of the 35 or 40 free and open-source projects SFLC represents, BusyBox and the Free Software Foundation are the two busiest when it comes to license enforcement activities, he added.

Monsoon declined to comment beyond its earlier statement from Graham Radstone, chief operating officer: "Since we intend to and always intended to comply with all open-source software license requirements, we are confident that the matter will be quickly resolved."

There have been a few examples in which the GPL has been involved in court cases, but the Monsoon suit isn't part of a larger strategy to build GPL case law, Ravicher said.

"Our client's goal was not to get a GPL decision from a court. Our client's goal was to get people to abide by the terms of the license," he said.

But legal precedents will come out of such cases. "My prediction was there will be more of these lawsuits," Harvey said. "A lot more will become known with respect to the licenses and the way they're to be used by the development of case law. It's not a great system but it's the one we've got."

Assertions of GPL violation have been going on for years, and the Free Software Foundation often has led efforts to bring companies into compliance. Not everybody has been satisfied with the pace of enforcement, however, including German open-source programmer Harald Welte.

"Violators don't lose anything by first not complying and waiting for the FSF," Welte said in 2005. Consequently, the open-source project in which he's involved began its own legal actions, some of them successful.

But Welte is an exception. Many programmers apparently would rather code than confront companies, often in a distant country and speaking a different language, with license violations.

That's apparently changing. Through the SFLC, many programmers have recourse, and the Monsoon case indicates that the center is willing to go to the mat.

"The message would seem very clear. To this point, the SFLC had never filed a lawsuit, nor had anyone filed a lawsuit on behalf of FSF in connection with GPL 2 code. Now they have," Harvey said. "So no longer is someone able to engage in water cooler conversation and say there's never been a lawsuit over the GPL. Clearly there has now. People need to pay attention to that."