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BusyBox and the GPL Prevail Again - Updated 4Xs
Tuesday, August 03 2010 @ 01:58 PM EDT

I thought you'd want to hear about what's just happened in the Software Freedom Conservancy v. Best Buy, et al case. It's another BusyBox case regarding infringement of the GPL, mostly about high definition televisions with BusyBox in them, and while the case is not finished regarding other defendants, it's certainly set another precedent. One of the defendants was Westinghouse Digital Technologies, LLC, which refused to participate in discovery. It had applied for a kind of bankruptcy equivalent in California. Judge Shira Scheindlin of the Southern District of New York has now granted Software Freedom Conservancy triple damages ($90,000) for willful copyright infringement, lawyer's fees and costs ($47,685), an injunction against Westinghouse, and an order requiring Westinghouse to turn over all infringing equipment in its possession to the plaintiffs, to be donated to charity. So, presumably a lot of high-def TVs are on their way to charities.

Of course, to collect the money, the plaintiffs must apply to bankruptcy court as a creditor, and you know from watching the SCO case what can happen to creditors in a bankruptcy case, but if you are one of the other defendants, one thing you know for sure now: the GPL has teeth, it is enforceable in a court of law, and if you violate it, it can cost you. Remember when you are choosing a license, you want one that you know is enforceable in court.

Here's the order on attorneys' fees and the memorandum and opinion from the docket:

131 - Filed & Entered: 07/27/2010
Memorandum & Opinion
Docket Text: OPINION AND ORDER granting # 99231 re: [112] MOTION for Default Judgment as to Westinghouse Digital Electronics, LLC. MOTION for Summary Judgment against Westinghouse Digital Electronics, LLC, filed by Erik Andersen, Software Freedom Conservancy, Inc., [127] MOTION for Kyle Bradford Fleming; Sarah Bawany Yousuf to Withdraw as Attorney, filed by Westinghouse Digital Electronics, LLC. Plaintiffs' motion for a default judgment against Westinghouse is granted. Accordingly, the Court need not address Plaintiffs' motion for summary judgment. Plaintiffs are directed to submit a fee application by 8/6/10. The Clerk of Court is directed to close the motion to withdraw Renner, Otto, Boisselle & Sklar and Kane Kessler as counsel for Westinghouse (Docket no. 127). (Signed by Judge Shira A. Scheindlin on 7/27/10) (cd) Modified on 7/29/2010 (ajc).

132 - Filed & Entered: 08/02/2010
Order
Docket Text: ORDER: On July 27, 2010, attorneys for Plaintiffs wrote a letter to the Court requesting $47,010 in attorneys' fees and $675 in other costs*. Because I find that these fees and costs are reasonable in light of the attorneys' technical expertise in the field, Westinghouse is ordered to pay Plaintiffs a total of$47,685. * - (Plaintiffs calculated their costs and attorneys' fees as follows. Lead counsel Daniel Ravicher worked 54.2 hours in connection with Plaintiffs' motion for a default judgment at a rate of $550 per hour. Associate counsels Aaron Williamson and Michael Spiegel worked one hour and forty-two hours, respectively, at a rate of four hundred dollars per hour. All three attorneys have legal and technical expertise in the area of software-related copyright law. The additional $675 was for experts' fees.) (Signed by Judge Shira A. Scheindlin on 8/2/10) (db)

Lawyers have already taken notice of this development. Fish and Richardson have an article up about the case, which they title "Free software comes at a price: violation of open source license leads to enhanced monetary damages and forfeiture of products in Software Freedom Conservancy v. Best Buy et al".. You have to register to read it, but a lot of lawyers will do that. [Update: A reader found it here, and here's the most relevant part:
Of particular note is the remedy the judge imposed. First, Judge Scheindlin found Westinghouse’s infringement to be willful and therefore awarded treble statutory damages of $90,000. The court also entered a permanent injunction prohibiting distribution of HDTV products with the BusyBox software and further ordered all infringing HDTVs to be forfeited to the plaintiff. Finally, the court invited the plaintiff to submit an application for reimbursement of its attorneys’ fees.

This case is significant in view of the enhanced monetary damages award, injunctive relief, and potential attorneys’ fees award imposed against the defendant for software that is otherwise available at no cost, and the case demonstrates the significant consequences that can result when terms of open source software licenses are ignored, whether intentionally or not.

So Eben Moglen and Dan Ravicher strike again. The GPL is enforceable. We've known that for a long time. I've been writing that since Groklaw began in 2003. But think of all the mainstream lawyers, not to mention all the trolls and anti-GPL netkooks, who opined endlessly about the GPL and how they thought it might not be upheld if it ever was challenged in court. Remember SCO's hilarious attempt to claim the GPL was unConstitutional? Well, they were, once again, wrong on the facts and the law.

Here's a recent interview with Moglen, Who You Gonna Call? Q&A With Software Freedom Law Center's Eben Moglen, in which he explains how the Software Freedom Law Center works and talks a bit about the Best Buy case. And remember, if you are a FOSS project, you can get advice or legal help:

LIN: Can you offer an example from a recent enforcement effort?

Moglen: Sometimes our clients need us to help them enforce their licenses. And sometimes the process of enforcing licenses requires lawsuits. One client of ours is BusyBox, which is a small suite of code that creates a positive environment on top of an operating system kernel which is very useful when embedded inside the stack or inside appliance devices.

The BusyBox project asked us to provide license enforcement for them. Their license is the GPL, so we do attempt to contact companies around the world that manufacture devices using BusyBox to honor the GPL. Sometimes companies are unresponsive to our inquiries. They don't answer our letters or phone calls. And only under those circumstances we sometimes sue people.

LIN: Can you gives us some of the particulars involving the GPL license case?

Moglen: Back in December we sued Samsung, Panasonic, Best Buy (NYSE: BBY) and a number of other manufactures and distributors of electronics because those manufacturers were embedding BusyBox and not obeying the GPL. Most of that involved televisions. Most cases were consolidated and presented in the U.S. District Court for the southern district of New York and are working their way through pretrial motions. I expect all of those cases to settle on various standards over the next few months.

They mostly are not litigating, though. Enforcement usually isn't required. It's much better to avoid litigation if you can, and one way is to set up your project appropriately in the first place, and they do a lot of that, helping projects to become non-profits. Sometimes what you need is just advice, for example if you feel threatened by a situation, and they do that too. And that's all confidential, unlike litigation, so if you need help, you can email help@softwarefreedom.org and see if they can take you on as a client. It's generally free:
LIN: Is your organization's case load strictly pro bono, or is there a fee structure used depending on the case and company involved?

Moglen: We are essentially a pro bono entity. With almost no exceptions, we do not charge the people for whom we provide the services. We do have a small subsidiary which is a commercial law firm of Moglen and Ravicher that performs services to for-profit clients. And 100 percent of that profit is donated back to our non-profit organization. So we have a very small commercial profit, almost insignificant. The majority of our work is paid for by our donors. (Daniel B. Ravicher is the Law Center's legal director.)

They have lawyers on staff in the US and India, and the hope is that they'll expand to other countries in the future.

Update: Here's another law firm, Hawley, Troxell Ennis & Hawley, an Idaho firm, informing its clients and the world in this 2009 paper published in the Idaho Law Review and authored by the head of the firm's Intellectual Property Practice Group, Brad Frazier, that GPL'd and other FOSS-licensed software is not public domain, in an article titled Open Source is Not Public Domain: Evolving License Philosophies [PDF]:

Such suits evidence that "open" source does not mean "in the public domain" and support the premise that open source is a licensing philosophy as opposed to an abandonment of any rights....

Gartner Group recently reported that eighty-five percent of companies are now using open source in some fashion. If the trend continues, businesses will be well advised to be familiar with the license terms that accompany proffered open source software, abide scrupulously by those terms, and not be lulled into accepting the conventional wisdom that open source software falls outside the realm of copyright law, which, as explained above, is certainly not the case

Words to live by. Words to live by.

Keep in mind that Linux is embedded in a lot of products too. And Linux is also under the GPL. Here's Sony's page where you can download the code used in their televisions, for example. If you pick the top one on the list, Bravia Internet Video, Sony tells you clearly that you are entitled to the code from their Open Source Code Depository: "In compliance with the GNU General Public License and GNU Lesser General Public License Agreements the following source code is made available below." Isn't that better than getting sued?

Why is Linux in TVs you ask? A Groklaw member explains in a comment, with a long list of all the products that also embed Linux, but here's the why of it with regard to televisions:

Why Linux in a television set?

Remember: if it has a screen, if it has an on screen menu, if it has an ethernet jack, WiFi, SD card support for multiple filesystems, if it has a web based interface or control panel, if it has USB, etc., then it probably already has Linux inside, and has had for years.

Also, one refinement. In the alternative to bankruptcy that California allows, things work differently than in bankruptcy court. The assets are turned over to creditors, for one thing, directly, and footnote 25 in the Opinion and Order states that unlike in federal bankruptcy law, which mandates an automatic stay of all litigation, there is no such provision in California state law. So a default judgment can be entered against Westinghouse and the plaintiffs here can file a claim for a share of the assets as creditors. The plaintiffs therefore have a better chance of getting something from Westinghouse than in traditional bankruptcy.

Update 2: Here's a letter [PDF] from Westinghouse's lawyers to the judge, explaining the bankruptcy equivalent issues, what happened to the company, and why the lawyers were no longer representing the company.

Update 3: I originally wrote that the Software Freedom Conservancy was a wing of the Software Freedom Law Center, but when I checked the organizational forms submitted to the government, federal and state, that nonprofits have to file annually, I see that instead it's an independent non-profit organization.

Update 4: SFC has now filed a motion for joinder, to bring in Credit Manager Association and Westinghouse Digital as successors in interest:

133 - Filed & Entered: 08/09/2010
Motion for Joinder
Docket Text: MOTION for Joinder. Document filed by Erik Andersen, Software Freedom Conservancy, Inc..(Ravicher, Daniel)

134 - Filed & Entered: 08/09/2010
Memorandum of Law in Support of Motion
Docket Text: MEMORANDUM OF LAW in Support re: [133] MOTION for Joinder.. Document filed by Erik Andersen, Software Freedom Conservancy, Inc.. (Ravicher, Daniel)

135 - Filed & Entered: 08/09/2010
Declaration in Support of Motion
Docket Text: DECLARATION of Daniel B. Ravicher in Support re: [133] MOTION for Joinder.. Document filed by Erik Andersen, Software Freedom Conservancy, Inc.. (Attachments: # (1) Exhibit 1, # (2)Exhibit 2, # (3) Exhibit 3)(Ravicher, Daniel)

I gather SFC thinks this "bankruptcy" was rather fishy and that the new entity, after moving through CMA, is actually the same as the original entity and remaining in business, just under a new name. From the Memorandum of Law in Support:
The precise final disposition of the assets of Predecessor Westinghouse Digital Electronics as between itself, CMA, and Successor Westinghouse Digital is not entirely evident from the notice of General Assignment given by CMA. D. Ravicher ¶ 2, Exhibit 1. However, it seems clear that the business of Predecessor Westinghouse Digital Electronics passed through CMA and is now being continued by Successor Westinghouse Digital.

One fact supporting the conclusion that Successor Westinghouse Digital is continuing the business of Predecessor Westinghouse Digital Electronics is that the successor company, which is named “Golden Star Electronics, LLC”, is now known as “Westinghouse Digital, LLC”, which is almost exactly the same as the name of the previous entity, “Westinghouse Digital Electronics, LLC.” D. Ravicher¶ 2,, Exhibit 1. The only difference between the name used by the predecessor corporation and the name used by the successor corporation is that the latter is no longer using the word “Electronics” at the end. Using the same name manifests a desire to maintain the goodwill and reputation associated therewith. This is only beneficial if the successor wishes to continue the same or similar business as the predecessor, else there would be no reason to want to continue to use the same name.

A second fact supporting the conclusion that Successor Westinghouse Digital is continuing the business of Predecessor Westinghouse Digital Electronics is that Successor Westinghouse Digital is using the same exact business address that was used by Predecessor Westinghouse Digital Electronics. The address registered by Successor Westinghouse Digital with the California Secretary of State on March 23, 2010, is 500 N. State College Blvd, Ste 1300, Orange, CA 92868. D. Ravicher ¶ 3, Exhibit 2. This is precisely the same address used by Predecessor Westinghouse Digital Electronics. D. Ravicher ¶ 4, Exhibit 3 (American Registry for Internet Numbers (ARIN) IP Address WHOIS Information showing Predecessor Westinghouse Digital Electronics registered its address on January 22, 2010, with ARIN as 500 N. State College Blvd, Ste 1300, Orange, CA 92868).

A third fact supporting the conclusion that Successor Westinghouse Digital is continuing the business of Predecessor Westinghouse Digital Electronics is that on August 6, 2010, counsel for Plaintiffs received a telephone call from an attorney named Arthur Moore, who represented himself as being an inhouse attorney for Successor Westinghouse Digital. D. Ravicher ¶ 5. Previously, in September and October 200, the same Arthur Moore had corresponded with plaintiffs' counsel in his capacity as inhouse counsel for Predecessor Westinghouse Digital Electronics. Id. Thus, Successor Westinghouse Digital appears to be employing at least some of the same employees as Predecessor Westinghouse Digital Electronics.

Thus, it seems undeniable that the new Successor Westinghouse Digital intends to, and in fact is, continuing the business previously conducted by Predecessor Westinghouse Digital Electronics, because it is using virtually the same name, the exact same address, and at least some of the same employees. As such, the court may join Successor Westinghouse Digital as a successor in interest because it is “simply a continuation of the seller.” LiButti, 178 F.3d at 124. Further, since the “business” of Predecessor Westinghouse Digital Electronics flowed through CMA for at least some period of time during April 2010 (it did not flow directly from Predecessor Westinghouse Digital Electronics to Successor Westinghouse Digital), then CMA may also be joined as a successor in interest in this action.

What some folks won't do, if this is accurate, to avoid obligations under the GPL.

  


BusyBox and the GPL Prevail Again - Updated 4Xs | 544 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SpaceLifeForm on Tuesday, August 03 2010 @ 02:02 PM EDT
If any.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

NewsPicks commentary here
Authored by: SpaceLifeForm on Tuesday, August 03 2010 @ 02:04 PM EDT
Please note which article you are referencing
int the subject line and include a link to it
for the future.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT Here
Authored by: SpaceLifeForm on Tuesday, August 03 2010 @ 02:05 PM EDT
Please make any links clickable.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

COMES notes here
Authored by: SpaceLifeForm on Tuesday, August 03 2010 @ 02:05 PM EDT


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

    BusyBox and the GPL Prevail Again
    Authored by: Anonymous on Tuesday, August 03 2010 @ 02:07 PM EDT
    That's great news!

    [ Reply to This | # ]

    lawyers' deliberately inflammatory title
    Authored by: Anonymous on Tuesday, August 03 2010 @ 02:21 PM EDT
    Giving their article the title "Free software comes at a price" is a
    deliberate attempt to portray FOSS developers and supporters as liars. Do these
    people work for MicroSCOft?

    It's Microsoft and their ilk who give away "free" software at a huge
    price. Remember the "free" trials of Office that saved documents in
    the most recent formats, which then couldn't be opened once the "free"
    trial period ended? Even pre-existing documents, in older formats, got
    converted, and then made inaccessible once the Office expiration date hit. The
    only way to get those files back, was to shell out big $$$ for a registered
    version of Office. The "free" trial carried a huge cost.

    So now, who's the liar?

    As has been said time and time again, all over the web, and even in these
    comments, "Free Software" is about freedom, not price. That is clearly
    documented in the GPL, and ignorance of its terms is no excuse. But the paid
    anti-FOSS shills will do everything they can to conflate the two meanings of
    "free".

    [ Reply to This | # ]

    when you are choosing a license, you want one that you know
    Authored by: mexaly on Tuesday, August 03 2010 @ 02:56 PM EDT
    Sounds like a market for copyleft licenses. Maybe it's time for a GPL Jingle?

    ---
    IANAL, but I watch actors play lawyers on high-definition television.
    My thanks go out to PJ and the legal experts that make Groklaw great.

    [ Reply to This | # ]

    note that this is GPLv2
    Authored by: Anonymous on Tuesday, August 03 2010 @ 03:21 PM EDT
    for those people who claim that GPLv2 is flawed and must be replaced by GPLv3,
    note that Busybox is GPLv2 only and is doing quite well in enforcing the
    license.

    [ Reply to This | # ]

    A contrast -- look at Sony
    Authored by: DannyB on Tuesday, August 03 2010 @ 04:05 PM EDT
    Try this experiment. Indulge me.
    1. Follow this link to Sony's Open Source Code Distribution Service.
    2. Click on Television. < li>Stop and catch breath. Wow, that's a lot of television models that have Linux since 2003. And that's just Sony brand televisions.
    3. Pick a television model. For instance, let's pick the model KDL-37M400 0. Click it. That takes you to where you can download the Linux source code for that model of television set.

    Why Linux in a television set?

    Remember: if it has a screen, if it has an on screen menu, if it has an ethernet jack, WiFi, SD card support for multiple filesystems, if it has a web based interface or control panel, if it has USB, etc., then it probably already has Linux inside, and has had for years.

    But now, Sony TV's will soon be running Android. Maybe Samsung TV's also. Maybe others too (1, 2, 3, 4 ).
    But Linux is in everything else.

    • Set top boxes
      • TiVo
      • Moxy (used by many local cable company DVR's)
      • Roku
      • Commercial devices running open source Boxee
        • D-Link's BoxeeBox
        • PopBox
    • Phones
      • Android (currently 65 phones made by 18 manufacturers)
      • Palm's WebOS
      • LiMo
      • Moto MAGX
      • MeeGo
      • Maemo (Nokia)
      • Moblin
    • Personal Media Players (some of them even run Android, not just "linux")
    • eBook readers
      • Amazon Kindle runs Linux
      • Barnes & Noble's Nook runs Android (which is Linux)
    • GPS Navigation Units (eg, Tom Tom, Garmin, etc all run Linux)
    • Television Sets
    • DVD players (can you say "on screen menu")
    • VCR's (can you say "on screen menu")
    • Digital cameras (can you say "on screen menu")
    • Digital Photo Frames (can you say SD card support, Internet, WiFi, BlueTooth, etc)
    • Almost all of the top-500 list of biggest supercomputers
    • Linux has breathed new life into the Mainframe market (just ask IBM) to consolidate modern workloads
    • Internet tablets (A whole bunch of Android powered tablets coming in 2nd half 2010 to threaten the iPad)
    • Netbooks
    • Smartbooks (eg, non x86 processors)
    • Home office routers and WiFi routers
      • Linksys (Cisco) a list of models so long it would make your head spin
      • D-Link
      • Netgear
      • Asus
      • dozens (yes dozens) of other brands (check the DD-WRT website)
    • Almost anything with an "embedded" web server
      • example: printers with a web-based setup interface. (Just what do you think is running that web server inside that printer or fax machine?)


    Long story short: Linux is quickly appearing in everything all around us.

    ---
    The price of freedom is eternal litigation.

    [ Reply to This | # ]

    The GPL was never reviewed
    Authored by: Anonymous on Tuesday, August 03 2010 @ 04:49 PM EDT
    The Westinghouse Digital Electronics, LLC decision was a DEFAULT JUDGMENT for
    non-compliance with discovery orders.

    The defendant was dissolved as a corporation and no longer existed. The court
    never reviewed a single sentence of the GPL license. The plaintiff's pleadings
    in a default judgment are simply ASSUMED to be true for the purpose of rendering
    a default judgment.

    This decision carries no legal precedent whatsoever other than the message that
    you're a loser if you choose to ignore a lawsuit.

    [ Reply to This | # ]

    BusyBox and the GPL Prevail Again
    Authored by: Anonymous on Tuesday, August 03 2010 @ 07:56 PM EDT

    Ouch. $90k statutory damages for an infringement that cost $0 actual damages. Maybe Westinghouse needs to hire Charles Nesson and see if he's fixed the bugs in his Constitutional argument against statutory damages. ;-)

    [ Reply to This | # ]

    No registration necessary for Fish/Richardson article
    Authored by: qubit on Tuesday, August 03 2010 @ 08:43 PM EDT
    Fish and Richardson have an article up about the case...You have to register to read it...

    I took the 30 seconds to register (and it turns out I didn't even need Mailinator), and I believe that the exact same content is available without registration on the Fish/Richardson website here: http://www.fr.com/free-software/

    (It's possible that that's just a short blurb -- it does seem a little short for an analysis to me -- but that's all I can find behind the registration wall)

    [ Reply to This | # ]

    BusyBox and the GPL Prevail Again
    Authored by: Anonymous on Tuesday, August 03 2010 @ 09:34 PM EDT
    So how many forfeited HDTVs did BusyBox end up with?
    And will the surplus sale cover their costs?

    [ Reply to This | # ]

    And they've set themselves up to receive a ton of spam
    Authored by: Anonymous on Wednesday, August 04 2010 @ 02:36 AM EDT

    And that's all confidential, unlike litigation, so if you need help, you can email help@softwarefreedom.org and see if they can take you on as a client. It's generally free

    My first thought was that it was thoughtless of PJ to publish that email address on a website. We all know (or we ought to know) that spammers use bots that crawl the web looking for the text pattern xxx@xxx.xxx, which they then harvest for their mailing lists.

    But the Software Freedom Law Center itself publishes that address, as harvestable text, on their own website. That will get them hundreds of spam emails every day, and the rate will increase with time.

    If you really need to contact them ... good luck on your message not getting lost in the flood of spam.

    [ Reply to This | # ]

    My life has been invaded by penquins.
    Authored by: Ian Al on Wednesday, August 04 2010 @ 03:15 AM EDT
    I have been smugly aware of several Linux devices in my home. I just did a
    little recap, and I realise I have missed quite a few.

    I have two hi-fi receivers which take a little while to boot up. Then there is
    the DVD player, the DAB receiver, the flat screen TV and perhaps the two
    glass-bottle screens as well. I wonder how those old glass bottle computer
    monitors get their OSD.

    My universal remote control has a USB port and a touch screen and downloads its
    configuration from the internet. The PVR is definitely Linux. My Squeezebox
    players must be Linux. There are a clutch of routers. I even wonder about the
    4-Port KVM switch with its USB ports and intelligent emulation of keyboards,
    mice and screens.

    What about my expensive, networked, colour laser printer? Oh goodness, then
    there is my guitar amp that connects to the computer for configuration and
    emulates other amps, cabinets and effect pedals. Then there are my Firewire
    connected microphone and line interfaces. I bet some of that outboard sound rack
    stuff has penguins inside.

    I don't think the refrigerator has one. The cooker and the microwave definitely
    don't have one. I would be a much better cook if they did. Don't penguins eat
    only raw fish?

    Oh, almost forgot the theatre sound system. Come to think of it, I suspect the
    cordless phone system. Oh, and the mp3 players as well.

    Tux has brought features, flexibility and control to my toys... essential
    life-experience equipment. I still have problems recording TV programs, though.



    ---
    Regards
    Ian Al
    SCOG, what ever happened to them? Whatever, it was less than they deserve.

    [ Reply to This | # ]

    Bankruptcy court?
    Authored by: Anonymous on Wednesday, August 04 2010 @ 05:04 AM EDT
    "Of course, to collect the money, the plaintiffs must apply to bankruptcy
    court as a creditor, ..."

    Well, according to

    http://www.articlealley.com/article_1045510_19.html

    "The ABC Option. In many states, another option that may be available to
    companies in financial trouble is an assignment for the benefit of creditors (or
    "general assignment for the benefit of creditors" as it is sometimes
    called). The ABC is an insolvency proceeding governed by state law rather than
    federal bankruptcy law."

    http://wineindustryinsight.com/?p=7735

    "In California, an assignment agreement does not require a court
    filing."

    http://bankruptcy.cooley.com/2008/03/articles/the-financially-troubled-compa/ass
    ignments-for-the-benefit-of-creditors-simple-as-abc/

    "In California, making an ABC does not require a public court filing. Some
    other states, however, do require a court filing to initiate or complete an
    ABC."

    http://www.yourbankruptcylawyer.com/Bankruptcy-Alternatives/Assignment-for-the-B
    enefit-of-Creditors.shtml

    "Assignment for the Benefit of Creditors in Southern California

    ...

    What is Assignment for the Benefit of Creditors?

    Assignment for the benefit of creditors is basically a quick, efficient out of
    court proceeding ... no court involvement"

    Hmmm.

    [ Reply to This | # ]

    Free Software Comes at a Price
    Authored by: Anonymous on Wednesday, August 04 2010 @ 08:25 AM EDT
    Client Alert: Free Software Comes at a Price
    July 29, 2010

    This case is significant in view of the enhanced monetary damages award, injunctive relief, and potential attorneys’ fees award imposed against the defendant for software that is otherwise available at no cost, and the case demonstrates the significant consequences that can result when terms of open source software licenses are ignored, whether intentionally or not.

    lexology.com link, registration required ..

    [ Reply to This | # ]

    Why the spin?
    Authored by: Anonymous on Wednesday, August 04 2010 @ 09:00 AM EDT


    Has any one read Judge Scheindlin's default ruling?

    This is a default ruling for violation of FRCP 37 discovery orders. It has
    *nothing* to do with the merits of the case. Here's Judge Scheindlin:

    "Because Defendant Westinghouse has defaulted, this court, 'is required to
    accept all of the [Plaintiff's] factual allegations as true and draw all
    reasonable inferences in its favor,' except those related to damages." Au
    Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981).

    How does this demonstrate the "the GPL has teeth, it is enforceable in a
    court of law, and if you violate it, it can cost you".

    The plaintiff's could have pleaded that the moon was made of green cheese and
    the court for purposes of default judgment would have been *required to accept
    it as true.

    So why spin this as proof the GPL is enforceable?



    [ Reply to This | # ]

    So how could Westinghouse Digital Technologies LLC be so foolish?
    Authored by: OmniGeek on Wednesday, August 04 2010 @ 11:46 AM EDT
    The surprising thing here is that the company in question didn't just do the
    simple, low-cost thing, and release the code that the GPL required them to
    release, thus bring them into compliance, end of problem, go on making TVs and
    earning money.

    Instead, they've been well and truly hammered. It makes no sense.

    If they feared a competitive disadvantage relative to other vendors of HD TVs
    with similar features, they might have considered that anyone else who used the
    code would ALSO be required to release it (or suffer a similar fate). No
    disadvantage from GPL compliance there, just a level playing field.

    As far as I can see, the rational conclusion to draw from this case is not that
    using GPL'ed software will cost you big, but rather that using GPL'ed software
    can be convenient and cost-effective IF you pay attention and follow the simple
    instructions printed right there on the label. If you can't follow the license,
    just don't use the code.

    One would think their corporate counsel would have been able to help them reach
    that rather simple conclusion. An experienced, diligent corporate counsel would
    doubtless read up on the litigation history of the GPL and conclude that it is
    to be taken as seriously as any other software license. One would definitely
    assume that any responsible attorney would advise against stonewalling discovery
    as a lawsuit defendant.



    ---
    My strength is as the strength of ten men, for I am wired to the eyeballs on
    espresso.

    [ Reply to This | # ]

    On the other side
    Authored by: philc on Wednesday, August 04 2010 @ 11:57 AM EDT
    Busybox is now viewed as a liability at two companies that I am familiar with.
    These companies are going to drop busybox in all their products. This is simple
    risk management.

    busybox is a useful part of the root file system but it is not critical. Busybox
    packages up a collection of common utilities into a single executable which
    saves space. The technique has been used before (actually I used the technique
    for different utilities on AT&T 5.3 Unix back in the late 80's). It is
    rather simple and easy to do. The desired utilities are available with BSD
    licenses.

    It is a lot less expensive and much lower risk to build a replacement than it is
    to deal with the the busybox lawyers. You can develop a lot of software for what
    this is costing Westinghouse.

    So the result is companies are turning away from FOSS due to legal risk.

    [ Reply to This | # ]

    Best Buy?
    Authored by: rsteinmetz70112 on Wednesday, August 04 2010 @ 12:59 PM EDT
    I was wondering why the only retailer named in the suit was Best Buy. I read the
    complaint and saw that one of the products named was Best Buy's Insignia brand.

    However Best Buy does not manufacture the product, they contract with a
    manufacturer to put their brand name on it. Similar to what Westinghouse Digital
    does. No doubt both of their contracts with the manufacturer includes language
    that the products must be legal.

    This leads me to ask whether any retailer can be held responsible for merely
    passing through infringing products. They did not make an infringing copy, they
    may not have had knowledge of the infringement.

    What standard is used to determine if a someone in the middle of the
    distribution chain is in violation of copyright?

    Who is responsible for providing source code or is everyone in the distribution
    chain have that responsibility.

    ---
    Rsteinmetz - IANAL therefore my opinions are illegal.

    "I could be wrong now, but I don't think so."
    Randy Newman - The Title Theme from Monk

    [ Reply to This | # ]

    More BusyBox and Linux infringement
    Authored by: Anonymous on Wednesday, August 04 2010 @ 04:49 PM EDT
    For what it's worth, I bought a Hisense MP800H media player that's doing the
    same thing, if anybody knows how to get in touch with the BusyBox and SFLC
    people. The MP800H has a mips-el build of busybox on it, with the copyright
    notice removed; i.e., if you run busybox, it doesn't show the authors' copyright
    notice, and none of the included documentation showed any GPL notices.
    Likewise, it's running Linux without any accompanying GPL notices.

    [ Reply to This | # ]

    Plaintiff dismissal?
    Authored by: Anonymous on Wednesday, August 04 2010 @ 04:59 PM EDT
    The Best Buy et. al lawsuit is captioned with "SOFTWARE FREEDOM
    CONSERVANCY, INC. and ERIK ANDERSEN, Plaintiffs,".

    How did "SOFTWARE FREEDOM CONSERVANCY, INC." qualify as a plaintiff in
    the Best Buy litigation? They don't own any copyrights. Here is the law of the
    Second Circuit:

    "The Copyright Act authorizes only two types of claimants to sue
    forcopyright infringement: (1) owners of copyrights, and (2) persons who have
    been granted exclusive licenses by owners of copyrights.[Note 3]

    [Note 3] ... We do not believe that the Copyright Act permits holders of rights
    under copyrights to choose third parties to bring suits on their behalf. While
    F.R.Civ.P. 17(a) ordinarily permits the real party in interest to ratify a suit
    brought by another party, see Urrutia Aviation Enterprises v. B.B. Burson &
    Associates, Inc., 406 F.2d 769, 770 (5th Cir.1969); Clarkson Co. Ltd. v.
    Rockwell Int'l Corp., 441 F.Supp. 792 (N.D.Calif.1977), the Copyright Law is
    quite specific in stating that only the "owner of an exclusive right under
    a copyright" may bring suit. 17 U.S.C. Sec. 501(b) (Supp. IV 1980).";
    Eden Toys Inc v. Florelee Undergarment Co Inc, 697 F.2d 27 (2nd Cir 1983).

    Perhaps PJ can explain.

    [ Reply to This | # ]

    BusyBox and the GPL Prevail Again - Updated
    Authored by: Anonymous on Wednesday, August 04 2010 @ 05:09 PM EDT
    "Such suits evidence that "open" source does not mean "in
    the public domain" and support the premise that open source is a licensing
    philosophy as opposed to an abandonment of any rights....".

    No no one in their right mind would claim that open source code is legally in
    the public domain absent affirmative abandonment.

    "It is well settled that rights gained under the Copyright Act may be
    abandoned. But abandonment of a right must be manifested by some overt act
    indicating an intention to abandon that right. See Hampton v. Paramount Pictures
    Corp., 279 F.2d 100, 104 (9th Cir. 1960)."; Micro-Star v. Formgen Inc., 154
    F.3d 1107 (9th Cir. 1998).

    The quoted law firm has discovered that water is wet!

    [ Reply to This | # ]

    My how the high and mighty have fallen - BusyBox and the GPL Prevail Again - Updated 2Xs
    Authored by: Anonymous on Wednesday, August 04 2010 @ 09:00 PM EDT
    There was once a day when Westinghouse was an honored name in the electronics
    industry.

    Now they are in bankruptcy because they failed to post code on a web site.

    Someone really messed things up!!

    [ Reply to This | # ]

    Perfect name for a law firm
    Authored by: Anonymous on Thursday, August 05 2010 @ 06:41 AM EDT
    Westinghouse's ex-law firm is Renner, Otto, Boiselle & Sklar. The acronym
    for which is ROBS. Coincidence? I think not!

    </sarcasm>

    [ Reply to This | # ]

    Best Buy Counterclaims
    Authored by: cjk fossman on Thursday, August 05 2010 @ 08:13 AM EDT
    This morning they are easy to find using a search engine.

    Here's a quick gist:

    Did not. Neener, neener.

    [ Reply to This | # ]

    CMA and GPL
    Authored by: cassini2006 on Thursday, August 05 2010 @ 12:15 PM EDT

    I'm confused on something.

    If CMA took over the assets of Westinghouse, they still have to follow the GPL? Don't they?

    Can they sell the TVs without following the GPL?

    [ Reply to This | # ]

    Disappointed
    Authored by: ChicagoIPLawyer on Monday, August 09 2010 @ 11:43 PM EDT
    First, as the so-called "trolls" have noted, the decision was a default judgment of no precedential value. I am not sure why this is such a controversial position here, but any litigator will confirm that a default judgment granted as a remedy for discovery non-compliance means nothing as a matter of precedent in an unrelated case. I really do not think it does any good to the OSS community to hype this as a court enforcing the GPL. Lost credibility cannot be easily replaced.

    Second, why does SFLC continue to go after such piddling amounts of money? Does anyone here really think that $150K is going make the difference to a major corporation? If a company like Westinghouse was going to ignore the GPL and use the code, the risk of a $150K judgment is certainly not going to deter them. Think of it this way. If you are a V.P. in charge of getting a new product out of the door, you might face the following choice:

  • Door #1: Buy a commercial embedded real time OS (cost: $50K for development licenses plus $10 per unit royalty). The commercial OS has limited hardware and developer support, much less third party code available. So, although your in-house engineers could develop drivers for your custom ASICs, you still have to contract with a third party development firm to customize the proprietary OS for certain components used in your device(cost: $500K plus 6-9 months development time). On top of all that, outside counsel is predicting at least 3-4 weeks to negotiate all of the agreements at a (minimum estimated) cost of $150K. Product ready in 9-12 months.

  • Door #2: Use Linux (free, available now, fully supports basic hardware). In house developers are able to modify driver code to support custom ASICs (internal cost: $75K and 1-2 months). No contracts to negotiate. Product ready in 2 months. Risk of a $150K judgment, but only if caught.

    Which would you choose?

    Of course, they also get all those TVs and there is the injunction. In real life, the forfeiture and injunction would have been the major issue (no one would fight much over $90K). However, it is really hard to know what a court would do if the injunction/forfeiture issue had actually been argued. There was not even a sentence dealing with the issue of whether the Supreme Court's eBay decision makes granting of injunctive relief (as well as forfeiture, since it ostensibly also requires inadequacy of the legal remedy) inappropriate. Instead, the court relief on the presumption of irreparable harm (see p. 8 of the slip opinion), which is the very same presumption that the Supreme Court in the eBay patent decision eviscerated. While you could distinguish eBay (e.g., it was a patent case; it involved patent trolls not legitimate open source developers, etc.), no attempt was made here to even deal with the issue - and I would argue that distinguishing eBay will prove much harder than it might appear when the issue is actually litigated. I would have much preferred if Westinghouse has at least put up a little fight on the remedy issue so thi decision could have some value.

    [ Reply to This | # ]

    • PJ, make a story about this
    Authored by: Anonymous on Wednesday, August 11 2010 @ 01:25 PM EDT
    http://www.ca9.uscourts.gov/datastore/media/2010/06/07/08-55998.wma
    http://www.ca9.uscourts.gov/datastore/media/2010/06/07/09-15932.wma
    http://www.ca9.uscourts.gov/datastore/media/2010/06/07/09-35969.wma

    [ Reply to This | # ]
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