LWN: Comments on "SFC: First Update on the Vizio lawsuit"

SFC: First Update on the Vizio lawsuit

marcH — Thu, 09 Dec 2021 15:33:21 +0000

I think the "bug fix" here is to allow confidential arguments, I've seen that happening in some courts. Some confidentiality claims can be legit, not just for business reasons.

SFC: First Update on the Vizio lawsuit

jospoortvliet — Wed, 08 Dec 2021 16:59:24 +0000

Law is funny, yeah, and trying to handle it seems a lot like breaking computer security.

I recently encountered a funny case, where a cease-and-desist (abmahnung in Germany) was used to try and stop a company from using arguments in a separate court case. So basically - there's a court case. In there, you're using arguments X, Y and Z. The company you're in a fight with then sends you separately a cease-and-desist for using these arguments, claiming X, Y and Z are business claims that are untrue and harms their business so you should not be allowed to use these in public anymore - including, of course, in the court case.

This can be very powerful because under the German rules, you have a very short time to respond to this demand from an other party (days), and they can ignore any requests for extension and just go to a judge and get a quick ruling once the time has passed without you even having a chance to defend yourself (yes, it's THAT one sided). Sure, they might lose the real case, but that's gonna be months later and by then you'll have lost that other case that was running because they took away your main arguments. Some clever legal hackery I'd say. There are ways around it: basically, you immediately tell the courts you got the letter and you need a few more days to respond and here are a few arguments why it's bull anyway - then there'll likely be a hearing and you win or lose. But if you don't recognize the strategy you might assume they act in good faith and will honor your (quite usual) request for an extension, without you having to contact the court pro-actively. And you're screwed.

I was surprised at encountering this tactic, really felt like a legal hack to me ;-) Kind'a in the style of Suits...

SFC: First Update on the Vizio lawsuit

rgmoore — Mon, 06 Dec 2021 23:47:42 +0000

It's not obvious that Vizio has to do any such thing. Their goal is to avoid having to talk about their conduct at all. The current action says that the things SFC is suing over are basically copyright issues, so the case should rightly be treated as a copyright claim and thus be moved to federal court. Once it's removed to federal court, they'll claim that SFC has no right to bring the claim under copyright law because they aren't the copyright holder. If that argument is convincing to the federal judge, they can completely sidestep the issue of whether they violated copyright law. It's not 100% obvious they can do this, but it's not a slam dunk for SFC, either.

SFC: First Update on the Vizio lawsuit

rgmoore — Mon, 06 Dec 2021 22:57:30 +0000

I guess Federal Court has jurisdiction over interstate contracts?

Not necessarily. With a business, there's always a bit of a question about what state it exists in; many big businesses have some presence in just about every state. IIRC, a business is considered to reside in both the state where it's incorporated (often Delaware, which has business-friendly incorporation laws) and the state that's considered to be its principal center of business, e.g. where most of their facilities are. If the any of the plaintiffs in a suit reside in one of those states, they can sue in state court. Even if they don't reside in one of those states (what is legally called "diversity jurisdiction"), they aren't required to sue in federal court; they can sue in state court instead if they think it's more advantageous. If they sue in their own state's courts, the defendant will often ask to have the suit moved to their local jurisdiction, but it would be unusual for a company to ask for a case to be moved to federal court for diversity jurisdiction if they're being sued in their home jurisdiction.

Note that most interstate contracts will have a term specifying the controlling law, usually in favor of the party that drafted them. So a company like Vizio that's based in California might write into their contracts that lawsuits will be settled under California law. If there's a contract clause spelling out the controlling law, any lawsuit will have to be either in state court in that state or in federal court, often in that state, since the federal courts in a state are usually familiar with the state's laws. For this reason, it's fairly common for big businesses to locate major subsidiaries in states with favorable laws. For example, many banks have relocated their subsidiaries that deal with credit cards to South Dakota, which has laws especially favorable to credit card issuers.

SFC: First Update on the Vizio lawsuit

Wol — Mon, 06 Dec 2021 22:06:03 +0000

The problem with saying it's a copyright case, is that Vizio is admitting that they do not own the code.

Which means that Vizio must have some agreement with the copyright holders - usually known as a contract! To which the SFC is a 3rd-party beneficiary.

The SFC will presumably argue that the existence of a licence means there must be a contract granting that licence. And they don't care whether the Federal or State court hears the case, provided they accept the SFC's claim to be a party to the contract.

"If there isn't a contract, there isn't a licence" is hopefully a very strong argument. The best scenario would be for the Federal Court to take the case, because then it would be US-wide, not just that state ...

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

sjvn — Mon, 06 Dec 2021 21:40:46 +0000

I strongly suspect that their in-house counsel hasn't done its due diligence. Their approach works well in fighting off most litigants. The SFC is Not your usual plaintiff.

Steven

SFC: First Update on the Vizio lawsuit

rgmoore — Mon, 06 Dec 2021 21:27:31 +0000

And has the side effect that Vizio, in trying to defend themselves here, will almost certainly be forced to file evidence that will incriminate them in any subsequent copyright action.

Not necessarily. I think the goal is to get the lawsuit dismissed before getting into those matters. The basic argument is that this is basically a copyright case. That's why they're asking to have it moved to federal court. Since SFC isn't the copyright holder, they have no right to bring a copyright case, and the whole thing should be tossed without even investigating whether Vizio is violating the copyright.

SFC: First Update on the Vizio lawsuit

pabs — Mon, 06 Dec 2021 08:39:39 +0000

I couldn't imagine damages from a GPL violation to ever approach the value of the company violating them. Regular damages would usually be $0 (I guess except for things with a commercial proprietary relicensing business?) but then I read that statutory damages can be between $750 and $30,000 per work (per copy?) and up to $150,000 per work (per copy?) for willful infringement. OTOH, statutory damages probably don't apply here, I doubt anyone registered Linux/busybox/etc with the US copyright office?

https://en.wikipedia.org/wiki/Statutory_damages_for_copyr...

SFC: First Update on the Vizio lawsuit

Wol — Mon, 06 Dec 2021 08:27:04 +0000

No not the court. But if the damages exceed the value of the company, the SFC appoint themselves receiver being the primary creditor ...

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

pabs — Mon, 06 Dec 2021 00:38:53 +0000

It seems unlikely that the court would give ownership of the company to SFC even if they were to ask for that :)

SFC: First Update on the Vizio lawsuit

Wol — Sun, 05 Dec 2021 21:08:43 +0000

I guess Federal Court has jurisdiction over interstate contracts?

Could Federal Court rule that "by remanding to Federal Court, Vizio admits this is a copyright case. By distributing GPL code Vizio has entered into a contract with the copyright holders (who are in multiple states and countries). As an entitled party to the contract the Federal court will hear SFC's claims"?

As a complete curveball, are Federal Courts part of the constitution, as in they are not allowed to take "property" without a proper hearing? Could SFC argue that - if Federal Court peremptoraly dismisses the case they are taking away SFC's rights without a hearing?

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

Wol — Sun, 05 Dec 2021 20:56:58 +0000

Depends whether they're honest or not :-)

A lawyer *should* provide honest advice. Managers *should* act properly on advice. Will they do what they're supposed to do, or will dishonest managers and lawyers (and judges?) collude to burn the company a la SCOG?

Retainer or payoll shouldn't matter. The danger for Vizio is that they succeed in defeating SFC in this battle, only for them to come back as a pure copyright infringement. In the UK I think that would open up management to criminal charges ...

Wouldn't it be nice if SFC demanded the company as statutory damages, then opened everything up and span it off as an employee co-operative :-) Send a warning shot over the bows of the industry as a whole ... :-)

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

mpr22 — Sun, 05 Dec 2021 20:19:25 +0000

Depends on whether they're on retainer or on payroll.

SFC: First Update on the Vizio lawsuit

geert — Sun, 05 Dec 2021 20:18:39 +0000

Which option leads to the highest profit for Vizio's lawyers?

SFC: First Update on the Vizio lawsuit

Wol — Sun, 05 Dec 2021 12:11:41 +0000

And has the side effect that Vizio, in trying to defend themselves here, will almost certainly be forced to file evidence that will incriminate them in any subsequent copyright action.

The best possible outcome is if Vizio's lawyers go to management and say "We're going to lose, there's nothing we can do, the only sane option is to roll over and co-operate".

That's assuming, of course, that the management are actually sane!

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

calumapplepie — Sat, 04 Dec 2021 22:45:13 +0000

The SFC could absolutely do that. However, they are very intentionally not. Doing so would be very settled law: there is very clear evidence that Vizio violated the copyright, and they'd lose. But the SFC doesn't want to do that: they're trying to set a legal precedent here. This is an ideal case for that, to a large degree: it's very easy for them to go about the traditional copyright-holder technique, so even if they lose here, they'll still be able to turn around and whack Vizio. The evidence is strong, and involves a large project, so Vizio won't be able to claim any sort of "didn't know" defense.

It's very clear that Vizio intentionally refused to comply with the GPL, and it's very clear that doing so harms consumers (who are are subjected to spying, ad-displaying TV's). If this case fails to set the precedent of standing that the SFC wants, then no case will. The risk-reward calculation is fairly clear: the only risk is the time spent finding out that the US won't be willing to let these types of cases pass, whereas the reward is a framework that makes it impossible for companies to use projects they lack the license to, even if the copyright holder isn't available.

SFC: First Update on the Vizio lawsuit

marcH — Thu, 02 Dec 2021 18:16:37 +0000

> The process works like this:

Any idea about the typical duration of this process?

Thanks for your explanations, they're basically a LWN article "hidden" in the comments.

> I do recall hearing of a situation where a defendant removed a case to the federal courts under diversity jurisdiction, then tried to argue that the court lacked subject-matter jurisdiction [...] but the circuit court was not impressed by this "dubious strategy" and remanded it to state court

This is hilarious and a good reminder of the difference between trying to exploit loopholes in law versus in computers: in the former case, the buck stops at humans with a minimum of common sense. Computer programs maybe more predictable than law interpretation but they stupidly do as they're told no matter what.

SFC: First Update on the Vizio lawsuit

gThorondorsen — Thu, 02 Dec 2021 13:23:55 +0000

No. Vizio's whole strategy is to convert it into a copyright case and then say that since SFC isn't the copyright holder they have no right to bring the case. It's a very powerful strategy if it works, because it means end-users have no right to demand the code, only the original copyright holder.

I suppose I (an hypothetical copyright holder) cannot work around that issue by publicly stating in or next to the license that the work is not and will never be licensed in any other way and that I grant anyone standing to sue for license/copyright violations in my stead (the scenario assumes that if the statement turns out to be false I alone bear full liability). Can someone more knowledgeable expand on that intuition?

SFC: First Update on the Vizio lawsuit

NYKevin — Thu, 02 Dec 2021 08:54:05 +0000

Vizio claims that state law doesn't apply, which (if correct) would mean that there is no state contract law violation in the first place. I must once again emphasize that this is (my understanding of) Vizio's position, and not necessarily the actual law.

If you have the copyright holder as a plaintiff, you can surely sue under copyright law. But you can (probably) only sue for the specific copyrights that you hold, unless the SFC's position is correct (in which case consumers would also be able to sue under the third-party beneficiary theory, under contract law). So if your plaintiff wrote a bunch of Linux code, that person likely cannot sue over a violation of (say) Busybox's copyright, because Busybox is not Linux. But IIRC the Busybox developers have litigated their copyrights rather aggressively in the past, so you could probably go find one of them and ask them to help.

Regardless, the SFC is unlikely to add any copyright-holding plaintiffs until and unless they lose the removal/remand fight, because it would undermine their claim that the lawsuit is purely a matter of state law.

SFC: First Update on the Vizio lawsuit

pabs — Thu, 02 Dec 2021 02:17:42 +0000

If SFC are in addition to being a Vizio customer harmed by Vizio, also a copyright holder for the works in question (and it seems they are), then what happens? It sounds like the federal court would have jurisdiction but the case would be about the state contract law violation?

SFC: First Update on the Vizio lawsuit

pabs — Thu, 02 Dec 2021 02:08:14 +0000

SFC presumably also represent some of the copyright holders in this case, since it is partially about the Linux kernel and they represent some Linux kernel copyright holders. Presumably they could also (and probably have) formed a coalition of a portion of the remaining copyright holders.

SFC: First Update on the Vizio lawsuit

pabs — Thu, 02 Dec 2021 02:04:35 +0000

SFC are themselves the customer, they went out and bought a Vizio TV after hearing about violations from other customers.

SFC: First Update on the Vizio lawsuit

NYKevin — Thu, 02 Dec 2021 01:58:50 +0000

> And why shouldn't the Federal Court have jurisdiction, seeing as the harm is the consequence of a Federal violation?

See Spokeo v. Robins, which states that a violation of a federal statute does not create jurisdiction by itself, even if the statute explicitly confers a right to sue on an individual (which is not the case here).

As for your repeated emphasis on "equity"... you are entirely missing the point. All of the courts involved or potentially involved in this case, federal or state, trial or appellate, all the way up and down the system, can hear and decide issues of both law and equity. Nobody is arguing over whether the court can apply equitable remedies, because it can. The issue is so well-settled at this point that you'd probably get sanctioned just for bringing it up. The "law and equity" combination even appears in the US Constitution (Article III, section 2). The problem is, "equity" does not mean "the court will magically figure out who deserves to win and do exactly what that party wants/deserves."

Before you can even begin to argue over "law" vs. "equity," you have to establish that the court has jurisdiction to hear the case. Federal courts are courts of limited jurisdiction, and cannot simply hear any lawsuit under the sun. It must fall under some statutory grant of jurisdiction (in this case, federal question jurisdiction). It must also satisfy standing requirements, and in the case of copyright law, it must specifically satisfy 17 USC 501, or else it must be thrown out (because the court is not Constitutionally empowered to grant the remedy sought - that's what "lacks jurisdiction" means, and why it is so important). The SFC probably cannot satisfy 17 USC 501, because they are not the rightsholder. So the federal court probably cannot do anything useful, and the only meaningful question left is whether the *state* court has jurisdiction. If it is a federal case, as Vizio claims, then the state court probably also lacks jurisdiction and so the SFC would be left without any remedy.

I'm not saying I like this. But this is how the system works.

SFC: First Update on the Vizio lawsuit

Wol — Thu, 02 Dec 2021 00:34:40 +0000

Replying to myself - so long as the Federal Court accepts the argument "I've been the victim of a crime therefore I have standing to seek redress", then it WILL backfire on Vizio - the only question for the Federal Court to start with is "which court has jurisdiction?".

Let's wait and see ...

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

Wol — Thu, 02 Dec 2021 00:27:53 +0000

So long as the court can sit in Equity, though, this strategy will hopefully backfire, and badly. As end user, the SFC has provably been harmed by the licence violation, and should be able to sue for redress ...

And why shouldn't the Federal Court have jurisdiction, seeing as the harm is the consequence of a Federal violation?

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

Wol — Thu, 02 Dec 2021 00:14:15 +0000

Where we have the advantage that the physical Court is not County or High (or until recently European), but can act as any Court by applying the relevant law.

So for example, if someone brought an action in the County Court, the Court was free to say "European law trumps County, here is what European law says". As farnz said, it would be lovely if the Federal Court took it because copyright was involved (didn't the Federal Court take a case because patents were involved, then kept it when patents were dropped? - SCOG or Google/Oracle?), then ruled that Equity (a state issue) meant recipients could sue over the GPL (a Federal issue because it's a copyright licence).

That really would open the floodgates for users to sue for the source, in Federal or State courts as they saw fit I guess ... :-)

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

farnz — Wed, 01 Dec 2021 23:06:48 +0000

I think you're being optimistic there - in this lawsuit, Vizio says "it's a copyright matter, nothing to see here", and admits nothing. As a result, no doors are opened up here - they were already open - and the lawsuit is simply a cost to the SFC.

That said, I will laugh like a drain if the Federal court finds a way to say that because of the terms of the GPL, the SFC has standing to sue over the infringement, as long as the penalty for Vizio is specific performance. I don't think this is at all likely (it's an exceptional stretch from the letter of the law), but I will still be hugely entertained if by trying this trick, Vizio expand the group who has standing to sue.

SFC: First Update on the Vizio lawsuit

rgmoore — Wed, 01 Dec 2021 23:01:26 +0000

While SFC may not technically have the right to demand the source code under copyright law, by refusing to distribute it, Vizio is violating the terms of the GPL and this will open up the doors for any copyright holder to say to Vizio: "Abide by the terms of the GPL or stop distributing my software."

Which is exactly the position they were in before. They opened themselves up to those suits as soon as they distributed object code of a GPL program but not the source. The only additional danger is if they actually have to stipulate that they're ignoring the GPL, since the copyright holder would be able to use that stipulation in their suit. If they can get a federal court to dismiss the case without looking into the facts because it's a copyright case and SFC isn't the copyright holder, they wouldn't even have to do that.

SFC: First Update on the Vizio lawsuit

rgmoore — Wed, 01 Dec 2021 22:33:04 +0000

So by trying to remove this from state court to federal court and trying to make this a case based on a copyright license does Vizio also have to drag in the original copyright holders?

No. Vizio's whole strategy is to convert it into a copyright case and then say that since SFC isn't the copyright holder they have no right to bring the case. It's a very powerful strategy if it works, because it means end-users have no right to demand the code, only the original copyright holder.

Obviously I dislike this intensely, but it's an interesting legal strategy that attacks what may be a weak point in the GPL. The way GPL enforcement has typically gone is that a copyright holder brings the suit. That leaves the violator in a tough spot. If they claim the GPL is invalid, they're guilty of a copyright violation, since the GPL is the only thing that gives them the right to copy the code in the first place. If they accept the GPL is valid, they have to admit they're in violation. Either way, they're doing something wrong and the copyright holder who brought suit has the right to sue them over it.

This strategy doesn't work if the one bringing suit isn't a copyright holder. If the violator is violating copyright law rather than the GPL, that's bad, but the end user doesn't have the right to sue them over it. If they can convince the court that the suit should be thrown out because it's basically a copyright suit, they might not even have to admit to violating copyright, so they won't have an admission to use against them if a copyright holder sues them later. If Vizio's strategy works, it would effectively mean only copyright holders can sue under the GPL, which makes it much weaker.

SFC: First Update on the Vizio lawsuit

dskoll — Wed, 01 Dec 2021 22:06:33 +0000

This is a dangerous game. While SFC may not technically have the right to demand the source code under copyright law, by refusing to distribute it, Vizio is violating the terms of the GPL and this will open up the doors for any copyright holder to say to Vizio: "Abide by the terms of the GPL or stop distributing my software."

SFC: First Update on the Vizio lawsuit

rgmoore — Wed, 01 Dec 2021 21:58:42 +0000

Does this mean, in the US, if some customer acquired a device containing Linux kernel code, and the vendor refused to provide the source, the customer cannot sue to obtain the source code?

This isn't settled law, but it sounds like this is what Vizio is claiming as part of their lawsuit. It makes sense they would claim this. They can't plausibly claim they aren't distributing GPL and LGPL code, and they aren't willing to give SFC the code. Denying that SFC even has the right to ask for the code is pretty much their only defense.

SFC: First Update on the Vizio lawsuit

NYKevin — Wed, 01 Dec 2021 21:23:52 +0000

The US federal court system, and nearly all* state court systems, have combined law and equity for a long time.

The problem in this case has less to do with law vs. equity, and more to do with state vs. federal, as well as contract vs. copyright (a conflict we've also seen in continental Europe, IIRC). US law doesn't like the idea of state and federal courts coming to divergent conclusions on essentially the same legal issues (see for example Erie Railroad Co. v. Tompkins), and so it prefers for most legal issues to be federal xor state, not both at once. But US law also wants contracts to be a state law thing and copyright to be a federal thing. Those two desires are in conflict here, because there are both copyright and contractual aspects at issue. The "normal" way to resolve that problem is called "pendent jurisdiction" or "supplemental jurisdiction" (where a state law claim is so closely related to a federal law claim that a federal court can deal with both at once). But you can't do that unless you actually file a (valid) federal claim (such as copyright infringement), which the SFC has not done (and indeed, *can't* do without the copyright holder's cooperation).

* Delaware is the only exception I'm aware of. Unfortunately, Delaware is basically the US's tax haven and everyone is incorporated there, so it's an important exception in practice.

SFC: First Update on the Vizio lawsuit

NYKevin — Wed, 01 Dec 2021 21:00:34 +0000

> And it seems their claims are not based on copyright infringement. They don't even claim to be (representing) the copyright holder of the code (even though for some parts they probably are).

Vizio's argument is, essentially, "our violation of the contract was similar enough to a copyright violation that state contract law is entirely preempted from dealing with such violations." I don't know whether that argument is correct or not, I'm just trying to represent it accurately.

> So by trying to remove this from state court to federal court and trying to make this a case based on a copyright license does Vizio also have to drag in the original copyright holders?

No, absolutely not. Assuming Vizio succeeds, that's the SFC's problem (which is why they probably automatically lose).

I do recall hearing of a situation where a defendant removed a case to the federal courts under diversity jurisdiction, then tried to argue that the court lacked subject-matter jurisdiction under Spokeo v. Robins (a recent SCOTUS case which tightened up the standards of when you can bring a federal lawsuit against someone). The district court dismissed the action, but the circuit court was not impressed by this "dubious strategy" and remanded it to state court, effectively saying "if we don't have jurisdiction, then the state court does, so don't try to drag it into federal court just to get it dismissed on that basis."

However, that was a diversity jurisdiction case (which is adjudicated under state law in federal court). I am somewhat skeptical that you can apply the same reasoning to federal question jurisdiction, because state courts should not have jurisdiction over questions of federal law.

> And who does determine whether the removal from state court is proper? Can the federal court simply refuse or can the state court deny the transfer?

The process works like this:

0. Plaintiff files in state court. If you file in federal court, then there's no analogous process to move it to state court (instead, the defendant would move for dismissal).
1. Defendant files removal notices in state and federal court. The case is immediately transferred to federal court, and the state court case is "stayed" (which is like hitting the "pause" button on the whole case).
2. If the plaintiff does nothing, the case remains in federal court and is decided there. Otherwise, the plaintiff files a motion to remand in federal court.
3. The defendant files a response to the plaintiff's motion, and the plaintiff files a rebuttal to that.
4. The federal court optionally holds oral argument (if they think this is a complicated issue of law), and then rules on it.
5. If the federal court rules that the case should be remanded, then it is returned to state court and proceedings resume there.
6. At no point does the state court get to do anything about any of this. The whole process plays out in federal court.

SFC: First Update on the Vizio lawsuit

Wol — Wed, 01 Dec 2021 20:37:54 +0000

I can't remember the correct term, something like "specific performance", but SFC are saying "we have the RIGHT to have the source code, therefore we have been damaged. Please force Vizio to comply with their obligations". This is (under UK law) a pretty blatant case for "Courts at Equity".

As I said elsewhere, these were specifically abolished about the turn of last century, but the principle lives on and is part of the Civil Court / Common Law system now, and I don't know what's happened to the concept under American law, but I guess it's similar.

Cheers,
Wol

SFC: First Update on the Vizio lawsuit

Gaelan — Wed, 01 Dec 2021 20:25:53 +0000

> Does this mean, in the US, if some customer acquired a device containing Linux kernel code, and the vendor refused to provide the source, the customer cannot sue to obtain the source code?

That's what this suit's trying to find out.

The traditional assumption has been that no, it needs to be a copyright holder (i.e. someone who wrote some kernel code, ideally a non-trivial amount, or their employer) who sues—it's their copyright being infringed, and the end user is not party to the dispute.

In this case, SFC is trying to sue on behalf of a customer, making the argument that the GPL was designed for the consumers' benefit, and therefore they have standing to sue.

SFC: First Update on the Vizio lawsuit

mjw — Wed, 01 Dec 2021 20:14:18 +0000

In their original filing the SFC said that state court has jurisdiction because:

This Court has subject matter jurisdiction over the claims raised herein, pursuant to the California Constitution art. VI, § 10 and Cal. Code Civ. Proc. § 410.10, as the claims contain causes of action colorable under California law, which are not given by statute to the jurisdiction of any other court.

And it seems their claims are not based on copyright infringement. They don't even claim to be (representing) the copyright holder of the code (even though for some parts they probably are).

So by trying to remove this from state court to federal court and trying to make this a case based on a copyright license does Vizio also have to drag in the original copyright holders?

And who does determine whether the removal from state court is proper? Can the federal court simply refuse or can the state court deny the transfer?

SFC: First Update on the Vizio lawsuit

atai — Wed, 01 Dec 2021 19:59:06 +0000

> * (in general) only the copyright holder can file a copyright infringement suit. If the case is litigated solely under a theory of copyright infringement, then the SFC probably loses automatically.

Does this mean, in the US, if some customer acquired a device containing Linux kernel code, and the vendor refused to provide the source, the customer cannot sue to obtain the source code?

SFC in this case may have relation to represent some of the projects, but not all.

In the upcoming Trump case, can SFC get involved if SFC does not represent the project whose AGPL code is used by Trump?

SFC: First Update on the Vizio lawsuit

NYKevin — Wed, 01 Dec 2021 19:11:10 +0000

Just to clarify this for people who don't know much about US law:

* The US court system is divided between state courts and federal courts. For the most part, these are two entirely separate systems, except that you can (try to) appeal from the highest court in a state to the US Supreme Court, if you think the state court's decision conflicts with the US Constitution or a federal law.
* Federal courts are courts of limited jurisdiction. They can only hear cases which the Constitution and/or federal statutes explicitly empower them to hear.
* State courts are courts of general jurisdiction. They can (for the most part) hear any case under the sun, so long as it in some way arises under or relates to their state's law (including common law). In particular, they can hear the vast majority of contract law cases.
* Under the US Constitution, federal law takes supremacy over ("preempts") state law where they conflict. You can't litigate a case under state law if that area of law has been preempted by federal law.
* If a claim arises under federal law, then the federal courts have jurisdiction to hear it, and state courts don't. There's also a thing called "diversity jurisdiction" where federal courts can hear state law claims, but that's probably not relevant here (or else Vizio would certainly have raised it as an argument in their filing, which they didn't as far as I can tell).
* In the US, copyright law is almost entirely federal. In an extremely small set of cases (not this one), you might be able to raise claims under state common law copyright, but this is usually only applicable to sound recordings made before 1972 or so.
* If a case is filed in state court, but the defendant believes that a federal court has jurisdiction over it, the defendant can "remove" it to federal court. The plaintiff may then try to have it "remanded" (sent) back to state court by arguing that the removal was improper.

The key paragraphs in Vizio's filing are as follows:

> Second, “[a] right is equivalent to rights within the exclusive province of copyright when it is infringed by the mere act of reproducing, performing, distributing, or displaying the work at issue.” Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1918–24 (1996). Here, each claim is completely preempted by the Copyright Act because each alleges violations of the exact same exclusive federal rights protected by copyright law, namely, the exclusive right to reproduce, distribute, and make derivative copies of the copyrighted computer programs or source code.
>
> Although plaintiff asserts claims against VIZIO under the guise of a breach of contract claim, that claim is based solely on rights that are qualitatively equivalent to those protected by federal copyright law. It is well established that exceeding the scope of a license by violating its “conditions” gives rise to a claim for copyright infringement. See, e.g., MDY Indus., LLC v. Blizzard Ent., Inc., 629 F.3d 928, 939 (9th Cir. 2011) (“[w]e refer to contractual terms that limit a license’s scope as ‘conditions,’ the breach of which constitute copyright infringement”); [snip additional citations]

A couple of other notes:

* Vizio's filing does not explicitly state that they think the SFC should not have any third-party beneficiary rights.
* However, this is a valid inference for the SFC to make, because (in general) only the copyright holder can file a copyright infringement suit. If the case is litigated solely under a theory of copyright infringement, then the SFC probably loses automatically.
* The SFC's press release makes much of the fact that Vizio never denies violating the GPL. However, we're not at that stage of the litigation yet. If you're still litigating procedure, you are not required to make a substantive defense yet. It's still entirely possible that Vizio will later turn around and make some sort of non-infringement, de minimis, etc. argument. But I'm somewhat skeptical that they will actually do this, because it sounds like the SFC has them dead to rights on the GPL violation itself.