Aggressive Attitude

It was an island of peace in the sea of IP litigation. While companies routinely battle infringement suits in other aspects of IP law, businesses rarely are sued for infringing open source software. This tranquility, however, may be coming to an end. In the past six months, four companies have been accused of infringing the copyrights in open source software.

Verizon Communications, Monsoon Multimedia, High-Gain Antennas and Xterasys Corp. all distributed products containing the open source BusyBox software, but these companies allegedly failed to make their products' source codes freely available to users, as required by the open source license for BusyBox. By failing to comply with the license terms, the companies lost their right to use the BusyBox software. Thus their distributions of the software constituted copyright infringement, according to the complaints in these cases. And these suits are likely just the beginning.

"Our clients want their license wishes respected when people use their software," says Dan Ravicher, legal director of the New York-based Software Freedom Law Center, which prosecuted the four lawsuits on behalf of the creators of BusyBox.

Complex Licenses
The threat of enforcement actions could discourage some companies from using open source software. But that would be an overreaction, according to legal experts. "The lesson is not to avoid open source software, but to really understand the terms of open source licenses," says Jim Thatcher, a software law expert in the Seattle office of Woodcock Washburn.

Ravicher says the judge in Jacobsen simply got the law wrong, but, he adds, this is only to be expected with new forms of licenses. "Several cases in the early '90s found clickwrap agreements to be unenforceable for all sorts of stupid reasons. Then the cases went to appellate courts, and the clickwraps were upheld," he says. It remains to be seen whether the ruling in Jacobsen will suffer a similar fate. The case is now on appeal to the Federal Circuit.

As for the plaintiffs in the BusyBox lawsuits, they've already seen some positive results. Two defendants quickly settled--agreeing, among other things, to pay damages to BusyBox's creators and to comply with the open source license in the future. The remaining two defendants, Verizon and High-Gain Antennas, are engaging in settlement negotiations. "We're pleased with the talks' progress," Ravicher says.


Steven Seidenberg

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