Open-source Software Doesn’t Necessarily Mean it’s “Free”

At the end of July, a federal court in New York issued a decision that put a high price on "open-source" or "free" software. Companies are looking more and more closely at ways to cut expenses, and using open-source software is one way to take advantage of software licensing without purchasing software. Open-source software, however, does not fall outside the bounds of copyright law. Contrary to conventional wisdom, it is not in the public domain.
The software involved in the New York case is titled BusyBox. It is described as a series of small utility-type programs that are tailored for and embedded in various products, such as wireless routers, firewalls, modems, internet radios, PDAs, media players, and HDTVs. Various manufacturers use the BusyBox software and its source code to make their products work. Although BusyBox and its source code are available without charge, the use of BusyBox is subject to the GNU General Public License (or "GPL"). GPL is an open-source copyright license. Although the software is free, the license places requirements on further distribution of the licensed software. For example, if a product is embedded with BusyBox software, the product's manufacturer/distributor must provide the source code and any upgrades or modifications available on the same terms, i.e. without charge. The GPL also prohibits licensees from distributing the software under a license that is more restrictive than the GPL. Gartner, Inc., a leading international IT firm, estimates that 85% of companies use open-source software in some fashion (Source: www.groklaw.net).
BusyBox claimed that Westinghouse, in addition to 13 other distributors, infringed the copyright license in the software. Westinghouse distributed HDTVs that were embedded with the BusyBox software while, at the same time, imposing more restrictive licensing terms than those in the GPL. The more restrictive licensing terms included a limitation for "personal, non-commercial purposes only." The federal judge deciding the case

  1. found that Westinghouse's infringement was "willful" and awarded treble statutory damages of $90,000,
  2. granted a permanent injunction against the distribution of HDTVs embedded with the BusyBox software,
  3. ordered all infringing HDTVs returned to the plaintiff, and
  4. awarded attorneys' costs and fees of $47,865.

The significance of the case is particularly evident considering the software at issue is available at no cost. Businesses should be familiar with the licensing terms of open-source software and abide by those terms. Open-source software remains subject to copyright law and the parameters of the license agreement. If you are distributing products that rely on the use of open-source software, be aware of potentially infringing activity if you do not make the source code and any modifications available at no-cost, and if you impose more restrictive licensing terms than the GPL, or whatever license the open-source software is subject. The GPL is not that difficult to comply with, see http://www.busybox.net/license.html. If you are contacted by an organization representing any software company or developer, do not ignore their demands. Consult with The Penning Group immediately. Dan A. Penning