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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.

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