Fusion Garage, makers of the Linux-based
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
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
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,"
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
"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
[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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