Cisco accused of violating open source licenses

Free Software Foundation, Inc. v. Cisco Systems, Inc., No. 08-10764 (S.D.N.Y., filed December 11, 2008). [Download the Complaint]

The Free Software Foundation (“FSF”) has filed a copyright infringement suit against Cisco claiming that Cisco has violated the GPL v.2 and Lesser GPL versions 2.0 and 2.1 open source licenses by distributing software without the source code. More specifically, FSF says that Cisco’s Linksys division has distributed firmware covered under these open source licenses in object code or executable form only, depriving users of the ability to modify and further distribute the source code for the programs.

No doubt FSF feels more confident in the success of its copyright infringement claims after this past summer’s decision from the Federal Circuit in Jacobsen v. Katzer. That case confirmed that the failure to abide by certain terms of an open source license can be treated as a use of the software beyond the scope of the license and therefore an infringement. The ability to seek remedies for copyright infringement and not merely breach of contract gives greater economic importance to open source licenses. Let’s hope this case gets to be litigated so that we can have some more resolution as to the contours of open source license enforceability.

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1 Comment

  1. Without commenting on the merits or philosophy behind the GPL enforcement action, I find FSF’s disclosure of settlement discussion details in its complaint (see enumerated paragraphs 30 through 42) violative of FRE 408, especially the underlying public policy for Rule 408. For example, in paragraph 30 of the Complaint, FSF effectively claims that the defendant admitted liability with regard to its model WIP300 firmware code. In the context of the next paragraph (as well as several other subsequent paragraphs), it would seem likely that if any such admission took place, it was within the context of some sort of a settlement discussion.

    If the court allows this complaint to stand as-is, without striking the sections that probably violate Rule 408, then that could have a chilling effect on the willingness for other parties within the sights of FSF to engage in early settlement negotiations. Why bother, if you know that anything you say in such negotiations can then be used to form the basis of a civil complaint against you? Hopefully, there will be a Defendant’s 12(f) Motion to Strike, or the Court will recognize the impropriety of FSF’s disclosure of not only settlement-discussion details, but the mere existence of such discussions, and strike the content on the Court’s own accord.

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