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Free Software Foundation Sues Cisco Systems

Free Software Foundation Files Suit Against Cisco Systems

The Free Software Foundation has just announced that it has filed suit against Cisco Systems in the United States District Court (Southern District of New York) for violations of the GPL. Veteran open source lawyer Hank Jones provided me with a copy of the complaint earlier, but it is now available on the FSF web site.

The basic 411 is that Cisco has been distributing gcc and binutils on Linksys routers minus the source. Which as we all know would violate the GPL. Richard Stallman, president and founder of the FSF said:

“Our licenses are designed to ensure that everyone who uses the software can change it, In order to exercise that right, people need the source code, and that’s why our licenses require distributors to provide it. We are enforcing our licenses to protect the rights that everyone should have with all software: to use it, share it, and modify it as they see fit.”

Here’s the details from the front page of the complaint:

THE PARTIES
1. The Free Software Foundation (“Plaintiff ”) is a Massachusetts not-for-profit 501(c)(3) tax-exempt public charity with its headquarters at 51 Franklin Street, 5th Floor, Boston, MA 02110. Plaintiff ’s nonprofit mission is to “promote computer user freedom and to defend the rights of all free software users.” In furtherance of this mission, plaintiff develops, markets, distributes and licenses computer software.

2. Upon information and belief, Cisco Systems, Inc. (“Defendant”) is a California corporation with its principle place of business at 170 West Tasman Drive, San Jose, CA 95134. Upon information and belief, Defendant is engaged in the business of manufacturing, advertising, marketing and distributing computer hardware and software. Upon information and belief, Defendant maintains offices and regularly transacts substantial business in this district, and also contracts with third party distributors to supply goods and services within this district.

JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over Plaintiffs’ claims for copyright infringement pursuant to 17 U.S.C. § 501 and 28 U.S.C. §§ 1331 and 1338(a).

4. This Court has personal jurisdiction over Defendant pursuant to Rule 4(K)(1)(a) of the Federal Rules of Civil Procedure and §§ 301 and 302 of the New York Civil Practice Law and Rules because, upon information and belief, Defendant has conducted and continues to conduct substantial business in the State of New York. Upon information and belief, defendant also contracts to supply goods and services and maintains offices within this district.

5. Venue in this district is proper under 28 U.S.C. §§ 1391 and 1400 because a substantial part of the events giving rise to the claims asserted herein arise in this district, and Defendant, upon information and belief, is and at all times was doing business in this district.

The case is number 08-CV-10764 and will be heard by Judge Paul G. Gardephe. It will be very interesting to see how this plays out. If you’ll remember, the FSF began working with Cisco in 2003 to help them establish a process for complying with their open source licenses. Apparently that’s not working out to well. Here’s the single count in the complaint as well as the “prayer for relief”:

COUNT I
COPYRIGHT INFRINGEMENT
43. Plaintiff realleges and restates paragraphs 1 through 42 as if more fully set forth herein.

44. Plaintiff is, and at all relevant times has been, the copyright holder under United States copyright law in the Programs.

45. Defendant’s distribution of its Infringing Products and Firmware without approval or authorization by Plaintiff infringes Plaintiff ’s exclusive copyrights in the Programs pursuant to 17 U.S.C. § 501.

46. Plaintiff is entitled to recover from Defendant the amount of its actual damages incurred as a result of the infringement, in such amount as is shown by appropriate evidence upon the trial of this case. 17 U.S.C. § 504.

47. Plaintiff is also entitled to injunctive relief pursuant to 17 U.S.C. § 502 and to an order impounding any and all infringing materials pursuant to 17 U.S.C. § 503. Plaintiff has no adequate remedy at law for Defendant’s wrongful conduct because, among other things, (a) Plaintiff ’s copyrights are unique and valuable assets whose market value is impossible to assess, (b) Defendant’s infringement harms Plaintiff such that Plaintiff could not be made whole by any monetary award, and (c) Defendant’s wrongful conduct, and the resulting damage to Plaintiff, is continuing.

48. Plaintiff is also entitled to recover its attorneys’ fees and costs of suit. 17 U.S.C. § 505.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests judgment against the Defendant as follows:

(1) That the Court issue injunctive relief against Defendant, and that Defendant, its directors, principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns, and all others in active concert or participation with Defendant, be enjoined and restrained from copying, modifying, distributing or making any other infringing use of Plaintiff ’s software;

(2) That the Court order Defendant to pay Plaintiff ’s actual and consequential damages incurred, in an amount to be determined at trial or, in the alternative, statutory damages as set forth in 17 U.S.C. § 504(c);

(3) That the Court order Defendant to account for and disgorge to Plaintiff all profits derived by Defendant from its unlawful acts;

(4) That the Court order Defendant to pay Plaintiff ’s litigation expenses, including reasonable attorney’s fees and costs of this action; and

(5) That the Court grant Plaintiff any such further relief as the Court may deem just and proper.

The Free Software Foundation certainly has the right and responsibility to manage their licenses. I’m just afraid this action will sew legal fear, uncertainty, and doubt about open source. This feels like a kraken with too many tentacles and no open source brain to keep them in concert. Since no one’s in that role, it’s a wonder the FSF hasn’t sued them before. Let’s hope for the best. Cisco’s not inherently evil, and I’ve got faith both parties can find some basis for agreement.