Fusion Garage speaks, but stalls on code release [LWN.net]

September 22, 2010

This article was contributed by Don Marti

Fusion Garage, makers of the Linux-based joojoo tablet, are still out of compliance with the GPL, but have responded to Linux kernel developer Matthew Garrett regarding his complaint this month to US Customs and Border Protection. Until Garrett filed a so-called "e-allegation" form with CBP, the company had refused his requests for corresponding source for the GPL-covered software on the joojoo. After the filing, company spokesperson Megan Alpers said that "Fusion Garage is discussing the issue internally."

The joojoo concept began as the "CrunchPad," in an essay by TechCrunch founder Michael Arrington. He wanted a "dead simple and dirt cheap touch screen web tablet to surf the web." After a joint development project between Fusion Garage and Arrington collapsed last year, Fusion Garage went on to introduce the tablet on its own.

Garrett said he is not currently planning on taking further action. "The company seems to be at least considering the issue at the moment, so I wasn't planning on doing anything further just yet," he said. Bradley Kuhn, president of the Software Freedom Conservancy, which carries out GPL enforcement, praised Garrett's effort on his blog:

However, it's really important that we try lots of different strategies for GPL enforcement; the path to success is often many methods in parallel. It looks like Matthew already got the attention of the violator. In the end, every GPL enforcement strategy is primarily to get the violator's attention so they take the issue seriously and come into compliance with the license.

In June, Garrett checked out a joojoo tablet and mailed the company's support address for the source to the modified kernel. He posted the company's reply to his blog: "We will make the source release available once we feel we are ready to do so and also having the resources to get this sorted out and organized for publication."

Although the device is fairly simple, Garrett said he would like to see some of the kernel changes. "They seem to be exposing ACPI events directly through the embedded controller. I'm interested to see how they're doing this and how drivers bind to it," he said.

The US government offers several tools for enforcing copyright at the border, which are cheaper and simpler for copyright holders than an infringement case in a Federal court. Beyond the "e-allegation" form that Garrett filed, other options include "e-recordation," which allows the holder of a US trademark or copyright to request that US Customs and Border Protection stop infringing goods at the border, and a Section 337 complaint, which can result in the US International Trade Commission assigning government attorneys to work on the US rights-holder's behalf.

"Customs will seize something if it's a clear knockoff product but they don't like to wade into disputes where it's not clear," said attorney Jeffery Norman of Kirkland & Ellis, a law firm that represents clients in Section 337 cases. "The ITC has jurisdiction to litigate disputes involving copyright, trademark and patent, but 99% of cases involve patents," he said.

While most of the ITC's copyright cases involve product packaging or manuals, Norman said, the ITC has taken action to exclude infringing copies of arcade game software. In a 1981 case, "Coin-Operated Audio Visual Games and Components Thereof" the ITC unanimously voted to exclude video games whose code infringed both copyright and trademarks of US-based Midway. In a 1982 case, also brought by Midway, the ITC not only voted to exclude infringing Pac-Man games, but issued a cease and desist order against the importers while the case was in progress.

In an LWN comment, Norman added, "Customs will only enforce either an ITC order or 'Piratical' [obviously infringing] copies." He advocated the ITC approach:

Therefore I think the ITC action is the way to go. You can get a quick exclusion order potentially, and I would expect you might be able to get a law firm to take this on pro bono as it will generate a lot of publicity.

Open Source consultant Bruce Perens said that retailers in the USA could be a reason for manufacturers in other countries to check license compliance for their embedded software.

[Retailers] need to get a particular income from their shelf space, and they've dedicated area for it that they might have used for other merchandise. They've sunk part of their capital into this opportunity. They have advertising already in process. And then the U.S. Customs impounds or destroys their merchandise, and they're stuck. Not only the capital they laid out is gone, but the potential to make the income. For the retailer, this should be a big deal. So, they absolutely must be assured that their manufacturers won't be getting them into this situation.

Although the prospect of Customs enforcement because of code they've never heard of might scare some vendors away from open-source-based products, Perens said, "the good news is that products like Android are so important to the market that retailers must learn to deal with Open Source or let their competitors have the business."

No GPL licensor has yet filed a complaint with the ITC, and even if a complaint is filed, the ITC can decide whether or not to act on it. However, import-based enforcement, including temporary orders enforced at the Customs level, can move much faster than ordinary infringement lawsuits. Whether the resulting uncertainty is enough to make device vendors double-check their license compliance remains to be seen.

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