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BusyBox Developers, SFLC Sue Verizon for GPL Infringement - Updated 3Xs
Friday, December 07 2007 @ 01:43 PM EST

Hold on to your hats, ladies and gentlemen. Those busy BusyBox developers, Erik Andersen and Rob Landley, have now filed a lawsuit against Verizon for GPL infringement. It's yet another case of alleged failure to provide source code. Here's the complaint [PDF]. I'll also provide it as text, below.

Remember how Eben Moglen used to say that negotiations were the best solution years ago, because the GPL was new and funds were limited? And then when he went to the Software Freedom Law Center he said he'd be in a position to do more? I think he told us the truth.

Update 3: For those thinking, "Well, how am I supposed to know how to get it right?" there is a BusyBox license page that explains, and it references Linksys as a good example nowadays, and suggests that you look at how they do it. Compliance isn't hard, really. I see the BusyBox developers used to have a Hall of Shame page, where they listed those ignoring the terms of the license. Apparently shame is insufficient as a motivator, so now they are starting to sue. Compliance is a lot pleasanter, I'm thinking, and the license page is quite clear.

The story's just starting to hit the media. Steven J. Vaughan Nichols' story in eWeek explains a bit about what BusyBox is:

The SFLC (Software Freedom Law Center) announced on Dec. 7 that it has filed a copyright infringement lawsuit against Verizon Communications on behalf of its clients, the two principal developers of BusyBox, alleging that Verizon has violated the GNU GPLv2 (General Public License version 2) in its fiber-optic Internet and television service, aka FiOS.

Verizon distributes Actiontec MI424WR wireless routers to FiOS customers. This router contains BusyBox ... BusyBox is a set of tiny versions of many common Unix/Linux utilities, which are squeezed into a single small executable. By providing replacements for most of the utilities ordinary found in GNU fileutils, shellutils, etc., developers get much of the expected functionality of the GNU utilities without the space requirements. Thus, the BusyBox programs are used in many--perhaps most--embedded Linux-based devices.

So if there are others out there neglecting to provide source code, I gather the message is that this is a good time to do something about it. The same two principal developers already successfully sued Monsoon Media, and they have litigation pending against Xterasys Corporation and High-Gain Antennas, LLC.

Update: Sean Michael Kerner at Internet News has a reaction from Verizon and a comment from Dan Ravicher of SFLC:

"We are aware of the suit," Verizon spokesman David Fish told InternetNews.com. "This matter is being dealt with." Fish did not elaborate....

Ravicher said he isn't worried about Verizon's size being an issue. "We see no significant legal or factual challenges, as both the law and facts in these cases are overwhelmingly on our side," Ravicher said. "Verizon's capability to afford litigation may make it more likely that the case proceeds for some time, but that's not a disadvantage or challenge, as we at the Software Freedom Law Center have a legal staff of sufficient size and expertise to do the same."

Update 2: I think we can figure out the problem from these statements, from Grant Gross's article in ComputerWorld:

Verizon spokesman David Fish said the telecommunications company is aware of the lawsuit and isn't ducking the issue. "This matter is being dealt with," Fish said. "We've referred it to the responsible third-party vendor" -- a reference to Sunnyvale, Calif.-based Actiontec.

But Ravicher claimed that both Actiontec and Verizon have to adhere to the requirements of the GPL as distributors of BusyBox. "When Actiontec distributes to Verizon, Actiontec has obligations," he said. "When Verizon turns around and redistributes to customers, Verizon has obligations. Even if Actiontec fulfills its obligations when it distributes to Verizon, that does not fulfill Verizon's obligations when it distributes to its customers."

Actiontec, according to the article, responded to the SFLC's notice, which is why it was not listed in the complaint. I'd say, then, that this is very likely to work out in the end. It appears to be a misunderstanding on Verizon's part. I have not forgotten, personally, how Verizon stood up to the RIAA, taking its case all the way to the Supreme Court to protect the privacy of its customers. And it won. So until I see otherwise, my assumption will be that this can be settled out.

Here is the press release from the Software Freedom Law Center on the Verizon suit, followed by the complaint as text.

**************************

BusyBox Developers File GPL Infringement Lawsuit Against Verizon Communications
Lawsuit Claims Verizon Illegally Distributes Open Source Software to FiOS Customers

NEW YORK, December 7, 2007 -- The Software Freedom Law Center (SFLC) today announced that it has filed a copyright infringement lawsuit against Verizon Communications, Inc. on behalf of its clients, two principal developers of BusyBox, alleging violation of the GNU General Public License (GPL). BusyBox is a lightweight set of standard Unix utilities commonly used in embedded systems and is open source software licensed under GPL version 2.

Verizon is the provider of a fiber-optic Internet and television service called FiOS. Verizon distributes Actiontec MI424WR wireless routers to FiOS customers. This router contains BusyBox, and under the terms of the GPL, Verizon is obligated to provide the source code of BusyBox to recipients of the device. According to the lawsuit, Verizon continues to distribute BusyBox illegally without source code, despite having been contacted by SFLC.

The complaint requests that an injunction be issued against Verizon and that damages and litigation costs be awarded to the plaintiffs. A copy of the complaint, as filed yesterday in the United States District Court for the Southern District of New York, is available at softwarefreedom.org/news/.

"Our clients licensed BusyBox under the GPL to ensure that all users of the program can access and modify its source code," said Dan Ravicher, Legal Director of SFLC. "Because Verizon chose not to respond to our concerns, we had no choice but to file a lawsuit to ensure that they comply with the GPL."

This is the fourth GPL enforcement lawsuit filed by SFLC on behalf of BusyBox developers Erik Andersen and Rob Landley. Defendants in previous cases have included Monsoon Multimedia, High Gain Antennas, and Xterasys Corporation. The case against Monsoon Multimedia was settled out of court in October, with Monsoon agreeing to remedy its prior violation, ensure future compliance, and financially compensate the plaintiffs.

About the Software Freedom Law Center

The Software Freedom Law Center -- directed by Eben Moglen, one of the world's leading experts on copyright law as applied to software -- provides legal representation and other law-related services to protect and advance Free and Open Source Software. The Law Center is dedicated to assisting non-profit open source developers and projects.

****************************************

Daniel B. Ravicher (DR1498)
[address, phone, fax]

Attorneys for Plaintiffs
Erik Andersen and Rob Landley

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x

ERIK ANDERSEN, an individual,
and ROB LANDLEY, an individual,

Plaintiffs,

-against-

VERIZON COMMUNICATIONS, INC.,
a Delaware corporation,

Defendant.

----------------------------------------x

Civil Action No. CV

COMPLAINT

This is an action by Erik Andersen, an individual, and Rob Landley, an individual, ("Plaintiffs") by and through their attorneys, the Software Freedom Law Center, Inc., to recover damages arising from infringement of their copyrights by Verizon Communications, Inc. ("Defendant") and to enjoin Defendant's future infringement. Specifically, Defendant distributed and continues to distribute Plaintiffs' copyrighted BusyBox software without Plaintiffs' permission and despite the fact that Plaintiffs notified Defendant of its unlawful activity. Since Defendant has infringed Plaintiffs' copyrights, and since that infringement is ongoing, Plaintiffs seek damages and injunctive relief.

1

1. Erik Andersen is a private individual with a residence in [redacted]. Rob Landley is a private individual with a residence in [redacted]. Erik Andersen and Rob Landley ("Plaintiffs") develop, market, distribute and license computer software in a professional capacity.

2. Upon information and belief, Verizon Communications, Inc. ("Defendant") is a Delaware corporation with its principle place of business at [redacted].

JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction over Plaintiffs' claims for copyright infringement pursuant to 17 U.S.C. 501 and 28 U.S.C. 1331 and 1338(a).

4. This Court has personal jurisdiction over Defendant pursuant to Rule 4(K)(1)(a) of the Federal Rules of Civil Procedure and 301 of the New York Civil Practice Law and Rules because Defendant's principle place of business is located within this district.

5. Venue in this district is proper under 28 U.S.C. 1391 and 1400 because a substantial part of the events giving rise to the claims asserted herein arise in this district, and Defendant, upon information and belief, is and at all times was doing business in this district.

FACTUAL BACKGROUND

6. Plaintiffs are authors and developers of the BusyBox computer program, and the owners of copyrights in that computer program. BusyBox is a single computer program that comprises a set of computing tools and optimizes them for computers with limited resources, such as cell phones, PDAs and other small, specialized electronic devices. BusyBox is extremely customizable,

2

fast and flexible, and, upon information and belief, is used in countless products sold by more than 100 manufacturers all over the world, including IBM, Nokia, Hewlett-Packard, and Siemens.

7. Plaintiffs have distributed BusyBox since on or about November 4, 1999. They distribute BusyBox in source code form, the human-readable form of a computer program that a programmer must have in order to make changes to the program. Plaintiffs distribute BusyBox under a license entitled the "GNU General Public License, Version 2" ("the License"). A copy of the License is attached to this Complaint as Exhibit A.

8. Under the License, Plaintiffs grant certain permissions to other parties to copy, modify and redistribute BusyBox so long as those parties satisfy certain conditions. In particular, Section 2(b) of the License, addressing each licensee, states:

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

Thus, if a licensee redistributes a version of BusyBox, it may do so only under the terms of the License.

9. The License permits a licensee to distribute BusyBox, or works based on BusyBox, in object code or executable form, on the condition that the licensee gives recipients access to the source code corresponding to what they distribute. The object code or executable form of a computer program is the form that can actually be run on a computer, but which is not intelligible to the human reader and thus is not practicably modifiable. Section 3 of the License states:

You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

3

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange . . . .

10. Plaintiffs have at no time granted any permission to any party to copy, modify or distribute BusyBox under any terms other than those of the License.

11. Upon information and belief, Verizon distributes to its customers the Actiontec MI424WR wireless router ("Infringing Product"), which contains embedded executable software ("Firmware"). Defendant also provides the Firmware corresponding to the Infringing Product for download via its website, at http://www2.verizon.net/micro/actiontec/actiontec.asp.

12. Upon information and belief, the Firmware contains BusyBox, or a modified version of BusyBox that is substantially similar to BusyBox, in object code or executable form. Distribution of the Firmware, either as part of the Infringing Product or by itself, thus inherently includes distribution of BusyBox and, as such, Defendant is required to have Plaintiffs' permission to make any such distribution. The only such permission available for BusyBox is the contingent one granted under the License.

13. Upon information and belief, since at least November 17, 2006, Verizon has distributed to the public copies of the Firmware in the Infringing Product, and none of these distributions included source code to BusyBox or offers to provide such source code.

14. Section 4 of the License states:

4

You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License.

Therefore, under the License, any party that redistributes BusyBox in a manner that does not comply with the terms of the License immediately and automatically loses all rights granted under it. As such, any rights Defendant may have had under the License to redistribute BusyBox were automatically terminated the instant that Defendant made non-compliant distribution of the Infringing Product or Firmware. Since that time, Defendant has had no right to distribute BusyBox, or a modified version of BusyBox, under any circumstances or conditions.

15. On November 16, 2007, through their counsel, Plaintiffs notified Defendant of its unlawful conduct based upon its failure to comply with the License.

16. Defendant has not responded to Plaintiffs' notice and continues to distribute the Infringing Products and Firmware in violation of Plaintiffs' exclusive rights under the Copyright Act.

COUNT I

COPYRIGHT INFRINGEMENT

17. Plaintiffs reallege and restate paragraphs 1 through 16 as if more fully set forth herein.

18. Plaintiffs are, and at all relevant times have been, copyright owners under United States copyright law in the software program known as BusyBox.

19. Defendant's distribution of its Infringing Product and Firmware without approval or authorization by Plaintiffs infringes Plaintiffs' exclusive copyrights in BusyBox pursuant to 17 U.S.C. 501.

5

20. Plaintiffs are entitled to recover from Defendant the amount of their actual damages incurred as a result of their infringement, in such amount as is shown by appropriate evidence upon the trial of this case. 17 U.S.C. 504.

21. Plaintiffs are also entitled to injunctive relief pursuant to 17 U.S.C. 502 and to an order impounding any and all infringing materials pursuant to 17 U.S.C. 503. Plaintiffs have no adequate remedy at law for Defendant's wrongful conduct because, among other things, (a) Plaintiffs' copyrights are unique and valuable property whose market value is impossible to assess, (b) Defendant's infringement harms Plaintiffs such that Plaintiffs could not be made whole by any monetary award, and (c) Defendant's wrongful conduct, and the resulting damage to Plaintiffs, is continuing.

22. Plaintiffs are also entitled to recover their attorneys' fees and costs of suit. 17 U.S.C. 505.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request judgment against Defendant as follows:

(1) That the Court issue injunctive relief against Defendant, and that Defendant, its directors, principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns, and all others in active concert or participation with Defendant, be enjoined and restrained from copying, modifying, distributing or making any other infringing use of Plaintiffs' software.

(2) That the Court order Defendant to pay Plaintiffs' actual and consequential damages incurred, in an amount to be determined at trial;

(3) That the Court order Defendant to account for and disgorge to Plaintiffs all profits derived by Defendant from its unlawful acts;

6

(4) That the Court order Defendant to pay Plaintiffs' litigation expenses, including reasonable attorney's fees and costs of this action; and

(5) That the Court grant Plaintiffs any such further relief as the Court may deem just and proper.

7

Dated: New York, New York
December 6, 2007

Respectfully submitted,

SOFTWARE FREEDOM LAW CENTER, INC.

By:
Daniel B. Ravicher (DR1498)
[address, phone, fax]

Attorneys for Plaintiffs
Erik Andersen and Bob Landley


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