BusyBox developers go after Verizon [LWN.net]

BusyBox developers go after Verizon

Posted Dec 7, 2007 17:16 UTC (Fri) by sepreece (subscriber, #19270)
Parent article: BusyBox developers go after Verizon

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...

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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.