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BusyBox developers go after Verizon
| From: | Jim Garrison <garrison-AT-softwarefreedom.org> | |
| To: | pr-AT-lwn.net | |
| Subject: | BusyBox Developers File GPL Infringement Lawsuit Against Verizon Communications | |
| Date: | Fri, 07 Dec 2007 09:00:25 -0500 | |
| Message-ID: | <475951F9.2050400@softwarefreedom.org> |
FOR IMMEDIATE RELEASE 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 http://www.softwarefreedom.org/news/2007/dec/07/busybox/v... "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. Visit SFLC at http://www.softwarefreedom.org. ###
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BusyBox developers go after Verizon
Posted Dec 7, 2007 15:17 UTC (Fri) by heksys (guest, #41569) [Link]
WOW I have this service and I never knew that it had open source code on it.
BusyBox developers go after Verizon
Posted Dec 7, 2007 17:16 UTC (Fri) by sepreece (subscriber, #19270) [Link]
I thought [IANAL] that resale of a product containing software was covered by the first-sale doctrine and did not require a license from the copyright holder (first sale holds that the first sale of an instance of a work covered by copyright exhausts the author's rights in that copy). That would suggest that Actiontec would be responsible for supplying the source code and not Verizon (unless plaintiffs know something additional - for instance, that Verizon is modifying the software loaded in the device). First sale is pretty important - without it you wouldn't be able to sell your used CDs or books, let alone computers with software on them, without permission from the authors. I thought this was reasonably well settled, in the US at least. The complaint didn't seem to allege that Verizon had installed or modified the software...
BusyBox developers go after Verizon
Posted Dec 7, 2007 17:47 UTC (Fri) by dlang (subscriber, #313) [Link]
if they didn't install the software how did it get installed on the routers? as far as 'first sale' goes, that applies when you are paying money for the software, but with the GPL what you are paying is the promise to do specific things when you redistribute the software to someone else. if you try to claim that 'first sale' privilages mean that you don't have to follow through with your promises that would invalidate the GPL (and many other licenses)
BusyBox developers go after Verizon
Posted Dec 7, 2007 18:05 UTC (Fri) by pauliusz (guest, #49461) [Link]
By your comment it seems that if my friend is making "pirate" copies of CD and I am selling them, then it means I am not guilty :) Cool! P.S. Verizone doesn't sell used devices :)
BusyBox developers go after Verizon
Posted Dec 7, 2007 19:26 UTC (Fri) by sepreece (subscriber, #19270) [Link]
Doesn't matter if the devices are used, as long as they're being resold. Your pirate CDs aren't covered by first sale because they aren't legal to begin with - it only applies if you bought a copy from someone licensed to distribute.
BusyBox developers go after Verizon
Posted Dec 9, 2007 23:21 UTC (Sun) by jamesh (subscriber, #1159) [Link]
I think you've answered your own question. If the sale of the routers to Verizon was illegal (because ActionTec had no license for the software), why would Verizon be covered by first sale doctrine when they resell them?
BusyBox developers go after Verizon
Posted Dec 10, 2007 14:48 UTC (Mon) by sepreece (subscriber, #19270) [Link]
First sale assumes a legal copy, so, no, it probably wouldn't apply if Actiontec had distributed illegally [*] Under the terms of the license, in such a situation Verizon would be under the normal license terms (that is, they would have all normal GPLv2 rights and responsibilities). However, at the time I wrote the note I assumed Actiontec's distribution was legal, because I had no reason to think otherwise (the complaint was only against Verizon). I have since read something that suggests the authors may also have had an issue with Actiontec, but that was not visible in the announcement, so I didn't know about it. Today, Actiontec has the source on their website; I have no idea whether they had provided an appropriate offer letter with the products or whether the source was on their website prior to the complaint. scott [*] maybe. IANAL. The GPL is different enough from normal licenses that it's hard to know how a court would apply it in such a case. A court might hold that the intent of section (4) was to treat recipients of illegal distribution as though the distribution had been legal, and that therefore first sale would apply. Or it might hold that the section (4) should be read directly, as imposing the GPL terms. Or it might hold something entirely different, rooted in commercial law rather than in the license.
BusyBox developers go after Verizon
Posted Dec 7, 2007 18:08 UTC (Fri) by pizza (subscriber, #46) [Link]
If all Verizon is doing is taking a retail shrinkwrapped device and installing it for their customers, then you may have a point. (That said, on the surface Actiontec seems to be complying with the GPL -- see http://opensource.actiontec.com/index.html ) Even if Verizon is using off-the-shelf devices, they still need to include the GPL text and the upstream "source code offer" (or whatever) in the documentation of the device that their technicians hand over to the end-user. But I suspect this device is at least branded for Verizon and as such is something only made available through the purchase of a Verizon service. As Verizon offers (presumably non-stock) firmware binaries for download off their support site, this places the ball squarely in Verizon's court. The question of whether or not they've modified the sources is irrelevant; they, as distributors, still have to comply with the GPL.
BusyBox developers go after Verizon
Posted Dec 7, 2007 18:19 UTC (Fri) by lutchann (subscriber, #8872) [Link]
On that page, the only source code they provide for "Wireless Broadband Router Model MI424WR" is Busybox, which means they're almost surely continuing to violate the licenses of many other components that are bundled with that system. I wonder if it's going to become typical that vendors will respond to these SFLC lawsuits by providing source code only to the software package that is the subject of the suit. (Thereby demonstrating that their other license violations are willful, but if nobody else is suing, it doesn't much matter...)
BusyBox developers go after Verizon
Posted Dec 7, 2007 19:25 UTC (Fri) by pizza (subscriber, #46) [Link]
You know, it's conceivable that the only GPL software that the MI424WR uses is Busybox. (Doesn't VxWorks provide a Linux userspace/syscall emulator?) Even if it's not, it's certianly plausible that only Busybox has been modified from the other set of GPL sources they provide on that site. Even if that isn't the case, they're under no obligation to provide the full set of source code on a public web site, given that they provide a written offer to provide the source on CD. This is why I said that "on the surface, Actiontec is complying with the GPL." Now if someone sends Actiontec $15 and the CD doesn't contain everything it's supposed to... then you can wag the finger at 'em and toss 'em to the legal wolves. Anyway. I'm glad these lawsuits are happening; aside from the direct cost of litigation, the fact that losing will destroy their business (and the fact that they *will* lose) means the relatively trivial cost of preemptively complying with the GPL is well worth it.
Please read the GPL before talking
Posted Dec 8, 2007 2:36 UTC (Sat) by khim (subscriber, #9252) [Link]
Even if it's not, it's certianly plausible that only Busybox has been modified from the other set of GPL sources they provide on that site.
It does not matter if source is modified or not: 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 ... accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.) Emphasis mine: you can only transfer source code offer if you only got offer instead of the original source and if it's noncommercial distribution.
Now if someone sends Actiontec $15 and the CD doesn't contain everything it's supposed to... then you can wag the finger at 'em and toss 'em to the legal wolves.
Verizon must provide the CD, not Actiontec - and I hope SFLC asked them to send the copy of said CD first...
Please read the GPL before talking
Posted Dec 8, 2007 2:57 UTC (Sat) by sepreece (subscriber, #19270) [Link]
I believe the source-code web page they were talking about is the Actiontec one mentioned above, so the question raised was whether Actiontec was meeting its obligations (that is, away from the topic of the original story). I don't think anyone in this chain has claimed that Verizon has made an offer to provide source.
BusyBox developers go after Verizon
Posted Dec 7, 2007 22:48 UTC (Fri) by sepreece (subscriber, #19270) [Link]
"On that page, the only source code they provide for "Wireless Broadband Router Model MI424WR" is Busybox," I have no direct knowledge of what's in the router, but the fact that they do list a much longer list of sources for their "GT products" suggests that they aren't averse to supplying their code...
BusyBox developers go after Verizon
Posted Dec 7, 2007 19:35 UTC (Fri) by sepreece (subscriber, #19270) [Link]
Thanks. If they're distributing updated firmware, that would seem to make the first-sale question irrelevant. B/t/w - when I referred to "modifying the software" I meant "modifying the device's software". That is, modifying the device by changing the software inside it. Obviously, loading new software into the device, whether modified or unmodified, would bring them under the license terms. I also don't think the "branded for..and only made available through..." would make any difference in license terms - as long as they were buying and reselling a packaged device, I think first sale would apply. But, as noted, IANAL, and it's all irrelevant if, as you say, they are also distributing firmware downloads.
BusyBox developers go after Verizon
Posted Dec 7, 2007 18:08 UTC (Fri) by lutchann (subscriber, #8872) [Link]
The Actiontec routers Verizon provides with their DSL service are certainly modified by Verizon, or at least modified by Actiontec to Verizon's requirements. In addition to branding the web interface, some configuration options are removed. I don't know if the situation is the same for the FiOS routers, but I would assume it is.
BusyBox developers go after Verizon
Posted Dec 8, 2007 11:17 UTC (Sat) by farnz (subscriber, #17727) [Link]
I'm no lawyer either, but my understanding of the first sale doctrine is that it lets you pass on your rights and obligations under copyright law as-is, not that it's an open get-out clause from copyright infringement if you don't modify something. The only clauses in a licence that it lets you escape are those that prevent redistribution entirely, and those that purport to put limits on you the seller that differ from those placed on the buyer.In this case, there are two possibilities:
- ActionTec distribute to Verizon in compliance with the GPL, by either supplying source code, or a written offer to supply. Verizon modify the package by removing the parts that lead to GPL compliance, and are thus not covered by first sale any more, as they're modifying things before they resell.
- ActionTec distribute without complying with the GPL (no source code, no offer). Verizon are still not covered by first sale, as the distribution to Verizon was illegal.
BusyBox developers go after Verizon
Posted Dec 8, 2007 16:32 UTC (Sat) by sepreece (subscriber, #19270) [Link]
My understanding is that first sale of an object covered by copyright exhausts the author's rights in that particular object. The purchaser is buying an object and all its contents and is no longer bound by the original license. The purchaser DOES NOT have any additional right to distribute the software contained in the device (make additional copies), but has the right to resell the device and the copy of the software that is in it. I don't think that would be affected by, for instance, loading additional software into the device or removing some of the software in the device. However, if the purchaser loaded other versions of GPL software into the device, then the distribution of that software would have to be under the terms of its license. The point is that the specific copy of the software that the purchaser got from the original seller is the purchaser's property and can be resold with no obligations under the original license (in the US). My understanding from one of the other postings is that Verizon is also distributing updated firmware and that they may also put a different version of the firmware into the device before reselling the device. In that case, they would be the original distributor for that copy and would be bound by whatever license applied. Note that all of this is speculative - nobody in this discussion seems to know exactly what's in the device or where they got it, so it's not clear what rules would apply...
BusyBox developers go after Verizon
Posted Dec 13, 2007 21:11 UTC (Thu) by lysse (subscriber, #3190) [Link]
> My understanding is that first sale of an object covered by copyright exhausts the author's rights in that particular object. The purchaser is buying an object and all its contents and is no longer bound by the original license. Copyright != ownership. Owner of content's copyright != manufacturer of object.
Current status of the cases
Posted Dec 12, 2007 8:25 UTC (Wed) by JesseW (guest, #41816) [Link]
None of the cases have yet had Answers filed by the defendants. In Andersen et al v. Verizon Communications, Inc. ( 1:07-cv-11070-LTS ), the most recent filing is the Complaint, on Dec 6. In Andresen et al v. High-Antennas, L.L.C. ( 1:07-cv-10456-LBS ), the defendants were served on Dec 2, and their answer is due by Dec 24. In Andersen et al v. Xterasys Corporation ( 1:07-cv-10455-PKC ), the defendants were served on Nov 21, and their answer was due by today; however, yesterday they got an extension; their new due date for answering the complaint is Jan 11, 2008. So, no news of interest yet, but, assuming there is no settlement, we should be seeing something of interest by early January at the latest.
Current status of the cases - update
Posted Dec 16, 2007 19:46 UTC (Sun) by JesseW (guest, #41816) [Link]
There have been one new filing. In Andersen et al v. Verizon Communications, Inc. ( 1:07-cv-11070-LTS ), a Initial Conference Order was filed on Dec 14. It states that there will be a conference, to lay out what the parties agree on, on March 7, 2008 (at 2:30 PM). Also, both parties have to file what they plan to talk about at the conference beforehand (by March 1, 2008). The order goes into considerable detail on what needs to be discussed. Interestingly, there is no certificate of service of the complaint, yet. Verizon may still be stonewalling. There is nothing new in Andresen et al v. High-Antennas, L.L.C. ( 1:07-cv-10456-LBS ), next deadline is still Dec 24. And there is nothing new in Andersen et al v. Xterasys Corporation (1:07-cv-10455-PKC ), next deadline is still Jan 11.
Pointer to more recent case update
Posted Mar 7, 2008 5:36 UTC (Fri) by JesseW (guest, #41816) [Link]
As of now, only the Verizon case hasn't been settled, and no new cases have been filed. I posted a full update in this LWN comment, under a more recent LWN article on the SFLC's campaign.