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January 6, 2009

Many observers in the Linux Community are now saying that the lawsuit between Cisco and the Free Software Foundation (FSF) is critical in determining the future of FOSS (free and open source software).

The FSF filed its lawsuit against Cisco in December, alleging that the company violated the terms of the GPL.

Legal experts say the lawsuit is about more than just about protecting the code-availability tenets of the free software license. Instead, they're weighing the much broader impact that a court decision could have on setting legal precedents for GPL compliance and copyright infringement.

Michael Bennett, legal partner at Wildman Harrold says "certainly, the FSF wishes to ensure source code availability. That is a real, root issue and source code availability is a core value of FSF."

Bennett also added that another key issue is whether the FSF will be able to recover monetary damages through an interpretation of the GPL model.

Since there is no charge for most open source software, the legal grounds for an author to seek damages may be murky, Bennett said. That's where two different interpretations come into play...

He added that under current copyright laws, remedies are available that aren't available under contract law.

Bennett said "FSF may be attempting to establish a precedent that copyright law principles apply. Judicial decisions in the United States have substantively interpreted the General Public License."

The FSF's case against Cisco is the culmination of more than two years of sparring over the licensing issue and also comes following the Software Freedom Law Center (SFLC)'s successful negotiation of a settlement with at least four other vendors over GPL violations in recent years, on behalf of the developers of BusyBox.

"For example, FSF is seeking injunctive relief, which, if granted, could prevent Cisco from distributing product with FSF code," Bennett said.

Overall, the SFLC is representing the Foundation in its lawsuit against Cisco, and at least one legal expert speculates that the SFLC's recent success may have worsened the FSF's chance to take on Cisco. Others disagree.

Jason Haislmaier, a partner in the intellectual property group at law firm of Holme Roberts Owen says "any attorney will tell you that trends in litigation are often countercyclical to the economy in general, in large part because companies generally grow less tolerant in difficult economic times of others infringing their rights and cutting into their markets."

Beyond just the legal activities of the SFLC, the FSF action against Cisco could potentially serve to build on the legal precedent of the ruling of the Jacobsen vs. Katzner case in August of last year. In that lawsuit, the U.S. Court of Appeals for the Federal Circuit (CAFC) established the precedent that an open source software license is legal and enforceable within the U.S. court system.

If FSF is capable in establishing that its copyright rights were in fact violated, many questions about the enforceability of the GPL could be answered.

Haislmaier added "the FSF is not a for-profit business, however, with the lawsuits brought by the BusyBox developers having broken the ice -- and having all ended in settlements involving cash payments of one sort or another -- I would not be surprised if the FSF views this at least in part as an opportunity to recoup some of the legal costs it has sunk into its years of dealings with Cisco."

He added "overall, the Jacobsen case stands largely for the idea that open source licenses are enforceable. But at the present time, it has done very little to interpret the substantive terms of any open source licenses. Perhaps the push from Jacobsen and the BusyBox cases helped embolden the FSF to bring its case against Cisco. However, I don't see the Cisco case as a move by the FSF to build on the lead provided by Jacobsen."

It will be interesting to see how this develops in 2009, and to what extent organizations are willing to protect their own rights.

Source: Linux News Today.

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