Open source license litigation involves lawsuits surrounding open-source licensed software. Many of the legal rights of open source software licensors enforceable against users violating licensing agreements are untested by the U.S. legal system. Free and open source software (FOSS) is distributed under a variety of free-software licenses, which are unique among other software licenses. Legal action against open source licenses involves questions about their validity and enforceability.
Copyright litigation
Jacobsen v. Katzer (2008)
Jacobsen v. Katzer ("Jacobsen") addressed the extent to which a copyright holder of free public-use software can control the modification and use of their work by another party.
Jacobsen made code available for public download under an open source public license, Artistic License 1.0, which Katzer copied into their own commercial software products without recognizing the code's source. Jacobsen argued that the terms of the license defined the scope of the code's potential uses and that use outside these restrictions infringed copyright. The license holder expressly stated the terms for modification and distribution of the material. Katzer argued that the license terms were, instead covenantal in nature and should be limited to enforcement under contract law.
The U.S. Federal Circuit Court of Appeals established that license terms are enforceable copyright conditions under federal copyright law, in addition to enforceability under state contract law. Since Katzer failed to comply with the terms of the license by affixing required copyright notices to the derivative software, their use of the code constituted copyright infringement. The case established that some violations of open source licenses can be claimed as infringements of copyright.
BusyBox litigation (2007-13)
During 2007 to 2009, Software Freedom Law Center (SFLC) filed a series of copyright infringement lawsuits on behalf the principal developers of BusyBox. These lawsuits claimed violations of the GNU General Public License Version 2.
In September 2007, SFLC filed a lawsuit against Monsoon Multimedia, Inc. alleging that Monsoon had violated the GNU General Public License (GPL) by including BusyBox code in products without releasing the source code. In October 2007, an SFLC press release announced the parties had reached a financial settlement, and Monsoon had agreed to comply with the GPL.
In November 2007 SFLC filed a lawsuit against Xterasys Corporation and High-Gain Antennas, LLC. In December 2007, SFLC announced a settlement. Xterasys agreed to stop shipment of infringing products until it published the complete source code licensed under GPL and to pay an undisclosed financial settlement.
In December 2007, SFLC filed a lawsuit against Verizon Communications, Inc. alleging Verizon had violated the GPL by distributing BusyBox in wireless routers without providing corresponding source code. A settlement announced in March 2008 included an agreement to comply with the GPL and to pay an undisclosed financial settlement.
In December 2009, Software Freedom Conservancy filed a lawsuit against 14 companies, including Best Buy, Samsung, and Westinghouse alleging violation of the GPL. By September 2013, all of the defendants had agreed on settlement terms, except for Westinghouse, against whom default judgment was entered.
Free Software Foundation, Inc. v. Cisco Systems, Inc. (2009)
On December 11, 2008, the Free Software Foundation (FSF) initiated a lawsuit against Cisco Systems in the United States District Court for the Southern District of New York. The FSF claimed various products sold by Cisco under the Linksys brand violated the licensing terms of many programs for which FSF held copyright, including GCC, GNU Binutils, and the GNU C Library. Most of these programs were licensed under the GNU General Public License Version 2, and a few under the GNU Lesser General Public License.
The Software Freedom Law Center (SFLC) represented FSF in the suit. The FSF contended that its copyrighted code was found in multiple Linksys models, and in the program QuickVPN. The plaintiffs asked the court to enjoin Cisco from further distribution of Linksys firmware containing FSF copyrighted code and also asked for damages amounting to all profits Cisco earned from sales of those products.
On May 20, 2009, the parties announced a settlement agreement that included Cisco appointing a director who would ensure Linksys products comply with free-software licenses. Cisco also made an undisclosed financial contribution to the FSF.
Geniatech v. McHardy (2018)
The Geniatechv. McHardy case, heard by the Higher Regional Court of Cologne (OLG Köln), Germany in 2018, was the culmination of a string of abusive litigations by Linux kernel developer Patrick McHardy concerning the noncompliance of GPL licensing terms (version2) by a number of Linux distributors. After the bench outlined their understanding of the case, McHardy elected to withdraw all extant proceedings, and the bench ordered him to pay all costs in what is seen as a substantial victory against copyright trolling by many in the open source community.
For about a decade, McHardy had contributed to the development of the Netfilter subsystem that provides network‑related operations to the Linux kernel. Geniatech EuropeGmbH is the Germanybased representative of consumer products manufacturer Geniatech, headquartered in Shenzhen, China. The actual devices in question are a series of satellite TVreceivers manufactured by Geniatech that employ the Linux operating system.
Specifically, the Cologne court advanced the view that McHardy is not a coauthor of the Linux kernel nor of Netfilter and that although McHardy might have rights in derivative works, he did not provide sufficient evidence of the copyrightability of his contributions. To be protected, such contributions need to represent the intellectual creation of the developer, which necessarily excludes most if not all maintenance programming. The court also opined that McHardy may have misused any rights he may hold, but noted that this matter would require further analysis. In addition, Geniatech made substantiated claims in filings that McHardy primarily performed his enforcement activities to seek monetary gain and not license compliance.
McHardy's strategy was to approach a commercial entity with minor GPL violations such as attribution deficiencies, lack or inadequacy of a written offer for source code, or an EULA conflicting with the GPL license for the sole purpose of obtaining an undertaking to cease and desist from further infringing activity and including a clause imposing contractual payments on any future infringements. German law admits such penalties to per violation, so the sums involved can be substantial. While the initial demands appeared modest, once McHardy has secured a contractual remedy he sought to uncover further violations and repeat the process while increasing the penalties. And because his cease and desist declarations may likely have required nondisclosure, it was difficult for defendants to band together and resist. This business model was both enabled by and tailored to the specifics of the German legal system. It is believed that McHardy approached around 80companies over license noncompliance and may have netted two million euros or more while active.
Markus vonWelser, who represented Geniatech at trial, argues that McHardy's litigation was an abuse of law and outlines defensive strategies for companies that find themselves subject to this kind of copyright profiteering.
In early2022, the Netfilter project announced that a legallybinding settlement between Patrick McHardy and three members of it coreteam had been reached. Netfilter mailing list. The settlement document from the District Court of Mannheim is public.
Contract litigation
Artifex Software Inc. v. Hancom Inc. (2017) Following Jacobsen v Katzer, Artifex Software Inc v Hancom Inc. in the United States District Court for the Northern District of California centered on breaches of open source software licenses, including breaches of contract as well as infringements of copyright. Artifex is the exclusive licensor of the software product, Ghostscript, under the GNU General Public License Version 3. Hancom is a South Korean software company that used Ghostscript in software they were selling.
This case concerned Hancom's failure to distribute or offer to provide the source code for their software. The GNU GPL provides that the Ghostscript user agrees to its terms, thus creating a contract, unless the user obtains a commercial license. Artifex alleged that Hancom did not obtain a commercial license to use Ghostscript, and claimed that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.
This case establishes that the GNU GPL constitutes a contract between the owner of the source code and the person/company that uses that code through the license. This sets the precedent that allows licensors to bring claims of breach of contract where a party does not comply with the terms of a license.
SCO Group Inc. v. International Business Machines Corporation (2017)
SCO Group Inc. v. International Business Machines Corporation was litigated in the United States Court of Appeals for the Tenth Circuit. It covered a complex contract with claims made in tort concerning contractual duties. Claims of code ownership were disputed. Eben Moglen, the counsel for the Free Software Foundation (FSF), released a statement regarding the lawsuit: As to its trade secret claims, which are the only claims actually made in the lawsuit against IBM, there remains the simple fact that SCO has for years distributed copies of the kernel, Linux, as part of GNU/Linux free software systems. [...] There is simply no legal basis on which SCO can claim trade secret liability in others for material it widely and commercially published itself under [the GNU GPL Version 2] that specifically permitted unrestricted copying and distribution. On May 14, 2003, SCO Group announced they would no longer distribute Linux. SCO said it would "continue to support existing SCO Linux and Caldera OpenLinux customers and hold them harmless from any SCO intellectual property issues regarding SCO Linux and Caldera OpenLinux products".
SCO claimed and maintains that their employees used code licensed under the GPL without proper authorization, and thus the license terms were not legally binding. For code to be licensed under the GPL, the copyright owner must place a GPL notice before the code, and SCO did not add the notices.
Software patenting litigation
Bain and Smith (2022) provide a review of patent litigations initiated against open source projects.
Diamond v. Diehr (1981), Bilski v. Kappos (2010), and Alice Corp. v. CLS Bank International (2014)
These U.S. Supreme Court cases defined law concerning computer program patent eligibility. The intellectual property implemented in computer programs does not inherently fall under patent law. Computer programs cannot be patented, but can be copyrighted.
In Alice Corporation v. CLS Bank, the Software Freedom Law Center (SFLC) submitted a brief to the U.S. Federal Circuit Court of Appeals to support the long-standing court precedents limiting patent rights for computer programs. The open source community has an interest in limiting the reach of patent law so that free software development is not impeded. The SFLC expressed support for the machine-or-transformation test which limits patenting of software processes to computers designated for specific purposes. The Court's ruling aligned with ideas set out in the SFLC submission.
Enfish LLC v. Microsoft Corp. (2016)
The ruling in Enfish LLC v Microsoft Corp. supported the patent-eligibility of software operating on a general-purpose computer.