2007 was the one of the most active years for legal developments in the history of free and open source (“FOSS”), and 2008 saw a continuation of important legal developments for FOSS. So without further adieu, here’s our list of the top ten FOSS legal developments in 2008.
1. First Major Appellate Decision For a FOSS License. Last year, the District Court in San Francisco in Jacobsen v. Katzner decided the first case under US law interpreting an open source license. That decision had the potential to significantly undercut the ability of FOSS licensors to enforce their license. However in August, the Court of Appeals for the Federal Circuit (“CAFC”) overturned the District Court decision and strongly supported the right of FOSS licensors to obtain copyright remedies for breach of FOSS licenses: such remedies include injunctive relief (an order by the court to the licensee to obey the license) and statutory damages of up to $150,000 for each infringed work. (Read more about the victory for open source in the Jacobsen Decision.)
2. Final End Of the SCO Attack On Linux. Although SCO’s lawsuits against IBM and others were largely resolved by the decision last year against SCO in its litigation with Novell over ownership of the copyrights to UNIX, several important issues remained. This year the court confirmed its ruling against SCO and awarded Novell $2,547,817 from the amount paid to SCO by Sun. The decision is interesting because the court came to different conclusions about whether licenses to SVRX software in SCO’s agreements with Sun and Microsoft were “incidental.” This term was important because SCO did not owe royalties to Novell if the license of the SVRX software (the royalties from which would have to be paid to Novell) was “incidental” to the licensing of Unixware. This case demonstrates the importance of careful drafting in intellectual property licenses.
3. First Settlement of Patent Infringement Litigation For an Open Source Community. Red Hat’s settlement of the Firestar litigation demonstrated the need to carefully consider the nature of open source communities on the settlement of patent litigation. Unlike traditional patent settlements, Red Hat ensured that the settlement covered other members of the community including upstream licensors of products incorporated in the Red Hat product and downstream licensees. The settlement of patent litigation for open source products needs to deal with the complexity of many open source products and communities. This reality makes settlement of patent litigation much more complicated for open source products than for traditional software. (Read more about the patent litigation settlement agreement between Red Hat and Firestar.)
4. Major Litigation on GPL. In December, the Software Freedom Law Center (SFLC) filed suit against Cisco Systems, Inc. alleging that Cisco had violated the GPLv2 and LGPLv2 in its distribution of certain software whose copyright is owned by the Free Software Foundation (FSF), including GNU C Library, GNU Coreutils, GNU Readline, GNU Parted, GNU Wget, GNU Compiler Collection, GNU Binutils, and GNU Debugger. The complaint asserts that Cisco distributed the programs without providing complete and corresponding source code as required by the GPLv2 and LGPLv2. FSF requested that an injunction be issued against Cisco and that damages and litigation costs be awarded to the FSF. The SFLC states that they filed the lawsuit reluctantly and had negotiated with Cisco for two years on the issues. The suit raises the question of whether the SFLC is becoming more willing to file suits to enforce the GPL. For example, the SFLC has been vigorously enforcing the rights under the GPLv2 for Busybox.
5. Enforcement of GPL For Busybox Continues. The Software Freedom Law Center has continued to enforce the GPLv2 on behalf of the owners of the copyright in Busybox software. Although most of these cases apparently are settled without litigation, SLFC filed suit three suits this year: Bell Products, Super Micro Computer, Inc. and Extreme Networks, Inc.
6. Open Source Litigation From Other Countries. Although litigation about open source licenses has generally been confined to Germany and the United States, one case that settled this year about the enforceability of the GPL was in Isreal. The plaintiff, Maryanovsky, claimed that the IchessU software violated the terms of the GPL because IchessU software did not include credit for him and was released under a proprietary end-user license agreement. He also suggested that an audio-visual module developed by IchessU was a derivative work, since it could not compile without his code. The case was filed in 2006, but was settled confidentially this year.
7. SFLC Guide to Legal Issues and GPL Compliance. The increasing ubiquity of open source software as well as the litigation to enforce the GPL and other open source licenses has made understanding the obligations imposed by the GPL very important for a wide range of companies. The SFLC has been the leader in developing and enforcing the GPL. They shared their views of the legal issues in open source and the obligations imposed by the GPL in two publications: A Legal Issues Primer for Open Source and Free Software Projects and A Practical Guide for GPL Compliance. The Primer and Guide are quite useful. Although licensing attorneys may not agree with all of their conclusions (the nature of the law and the lack of court decisions make this statement true about most open source license issues), the Primer and the Guide should be read by any lawyer working with open source legal issues.
8. American Law Institute Publishes Draft of Principles of the Law of Software Contracts with Significant Problems for Open Source Software. The ALI is a very prestigious and influential non-profit institution whose purpose is “to promote the clarification and simplification of the law and its better adaptation to social needs.” The Principles state that the “best practices” in software licensing would be to include two new “non-disclaimable” warranties which would result in significant problems for the open source community. The warranties are the (1) warranty of non-infringement of intellectual property rights (such as patents or copyrights) if the contributor knew or should have known of the infringement and the contributor holds himself out by occupation as having knowledge or skill peculiar to the software and (2) warranty of no hidden material defects. Current law (and all OSI-approved licenses) permit the contributor (and any licensor) of open source software to completely disclaim all warranties—i.e., promises about performance or non infringement which could result in liability to a contributor or a licensor (so called AS IS provisions). If accepted by the courts, these recommendations would have a significantly negative effect on open source licensors. (Read more about how the ALI’s legal recommendations could create new liabilities for open source licensors.)
9. Publication of Version 1.3 of GNU Free Documentation License. The new version permits the use of the Free Documentation License (FDL) with the Creative Commons Attribution ShareAlike License (CCASL). The draft is an interim one and SFLC is working on FDL 2.0. However, the Wikimedia Foundation requested the FDL be made compatible with the CCASL. This change recognizes the need for the two major branches of “free” content licenses to be compatible just as the GPLv3 was modified to be compatible with the Apache license.
10. Project Governance Concerns Become More Important. The recent fork in the Twiki community (an open source wiki project) demonstrates the need for a community to think about how it will manage itself. As open source projects have greater economic value, the potential for the community to split over decisions regarding the direction of the project (in particular, commercialization) will increase. Communities need to develop processes to discuss these issues and come to a conclusion that is supported by the community. Although forks are always an option for open source projects, they generally create significant loss of momentum and can doom a project if it has competitors offering similar functionality. In the case of Twiki, the ownership of the Twiki trademark by Peter Theony, the project leader, was critical to the control of the project.
