Free Software Foundation v. Cisco was a copyright lawsuit filed by the Free Software Foundation (FSF) against Cisco Systems in the Southern District of New York in December 2008. The FSF alleged that Cisco, through its Linksys division, distributed firmware containing GNU programs on which the FSF holds copyright without complying with the GNU General Public License (GPL) and Lesser General Public License (LGPL), in particular without providing the corresponding source code.[1] The FSF said it was the first time in fifteen years of enforcing its licences that it had gone to court.[3] The case was dismissed in April 2009 and settled.[2][4]
Background
The complaint listed the GNU C Library, Coreutils, Readline, Parted, Wget, the GNU Compiler Collection, Binutils and the GNU Debugger as programs on which the FSF holds copyright, several of them registered. The FSF distributed the versions at issue under GPL version 2 and LGPL versions 2 and 2.1, and the complaint quoted the conditions on which redistribution is allowed: object code must be accompanied by the complete corresponding source code or, under the GPL, by a written offer valid for at least three years, and “complete source code” includes “the scripts used to control compilation and installation”.[1]
According to the FSF, it had begun working with Cisco in 2003 to establish a compliance process, but five years later it had “still not seen a plan for compliance”.[3]
The dispute
The FSF alleged that Cisco, via Linksys, sold communications devices containing embedded firmware and offered the firmware for download from the Linksys website, that the firmware contained the FSF’s programs or modified versions of them in object code form, and that Cisco distributed it without permission because it did not meet the licence conditions. It sought damages and an injunction for copyright infringement.[1] The case was assigned to Judge Paul G. Gardephe, who extended Cisco’s time to answer several times; the docket shows no answer before the case was dismissed.[2]
Decision or outcome
By an order signed on 2009-04-21 the court dismissed the action with prejudice and without costs, with leave for either party to apply to restore it before 2009-05-21.[2] On 2009-05-20 the FSF announced a joint agreement under which it dismissed the suit. Cisco agreed to appoint a Free Software Director for Linksys to supervise compliance with free software licences and report periodically to the FSF, to notify previous recipients of Linksys products containing FSF programs of their rights, to publish a licensing notice on the Linksys website and in a separate publication, to keep the source code of FSF programs used in current Linksys products available on its website, and to make a monetary contribution to the FSF. The amount was not disclosed.[4]
Significance for software licensing and SAM practice
The case shows that the GPL and LGPL conditions on distribution apply to software embedded in hardware and to firmware updates offered for download, not only to software sold as a product.[1] It also shows the kind of remedy an open-source licensor may seek: the settlement centred on a compliance function, notices and source availability rather than on damages alone.[4] For the licence conditions themselves, see GNU GPL, LGPL and AGPL obligations.
Lessons learned
- Embedded distribution is distribution. The claims concerned firmware in devices and firmware offered for download.[1] Organisations that ship devices or appliances should keep a bill of materials for the firmware as well as for installed software.
- Provide the complete corresponding source. The complaint relied on the licence requirement that source include build and installation scripts.[1] A source archive that cannot rebuild the shipped binary may not satisfy the licence.
- Compliance gaps can outlast a warning period. The FSF said it had worked with Cisco on compliance since 2003 before suing.[3] Track open-source compliance requests to closure.
- Expect governance obligations in a settlement. Cisco agreed to appoint a Free Software Director and report to the FSF.[4]