A Gathering Storm: Open Source Software Litigation

My inaugural “techlaw” post focuses on some of the recent activities of the Free Software Foundation that should be of interest for any organization selling products that incorporate software. The FSF is a non-profit entity that advocates use of so-called “open source” software subject to the “GPL” license. 

The GPL is a software license that differs from the typical licenses that accompany commercial software in that it allows users access to the human readable or source code underlying the software and allows users to copy, modify, combine with other code and redistribute the software without charge. Many widely used items of software, such as the Linux operating system and the MySQL database, are distributed under the GPL. Open source software is freely and widely available, and it is attractive to developers because incorporating the software into ongoing projects can save time and money.  Because of these advantages, open source software has come to reside within many organizations, often unbeknownst to management.

While open source software can allow companies to save licensing fees and development cost and effort, the GPL license requires that companies that distribute (i.e., resell or license) products that contain GPL software, or derivatives of GPL software, to release the source code for any software in the product that is that is derived from or incorporates the GPL software. Failure to adhere to this requirement can subject companies to liability for copyright infringement, which under the Copyright Act exposes infringers to claims for disgorgement of profits or statutory damages, attorneys’ fees and injunctive relief. In addition, releasing the source code may not be consistent with a company’s intellectual property strategy, especially where the company may have made proprietary or trade secret modifications to the code that give the company an advantage in the marketplace.

Recently the FSF brought four lawsuits on behalf of two software developers against companies, including Verizon, Monsoon Multimedia, High-Gain Antennas and Xterasys, that were allegedly distributing applications containing a widely used open source utility known as “Busybox.”  The FSF recently settled these lawsuits on terms that reportedly involved the payment of undisclosed sums of money, the release of the source code for the software and the appointment of internal open source compliance officers to oversee compliance with open source licenses. In a related development, the FSF announced the formation of a for-profit law firm, staffed by lawyers for the FSF who will specialize in bringing copyright infringement actions on behalf of for-profit companies to enforce the provisions of the GPL. The FSF itself continues to provide pro bono legal services to non-profit organizations in asserting GPL license violation claims.  

Several things jump out at me here.  First, the recent lawsuits show that even sophisticated organizations are at risk of running afoul of open source licensing requirements as they bring their products to market, if they do not take inventory of and address the presence of open source software in their products. Second, commercial entities should not assume that the persons, groups or entities who develop open source software will not have sufficient resources to pursue these claims, as organizations such as the FSF or private firms working on a contingent fee basis may very well foot the bill for the litigation. Third, with the volume of commerce involved and the remedies available for copyright infringement, we are likely to see more technically inclined lawyers pay more attention to GPL-violation lawsuits as a potentially profitable line of business. Be careful out there.

Francis Taney
Buchanan Ingersoll & Rooney

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