A test for copyleft?

Another free-content related lawsuit has been filed in the last few days; this time the first United States case based on infringement of the GNU General Public License, filed in a New York state court last week.

The plaintiffs are the developers of the BusyBox project, a collection of small versions of Linux utilities bundled into a single executable, designed for use as firmware or in embedded systems. They allege that the defendant, Monsoon Multimedia, included BusyBox, or a modified version of it, as part of the firmware on some of their hardware products, and did not offer the source code to the firmware as required by the copyleft provisions of the GPL. The plaintiffs, through their lawyers the Software Freedom Law Center, claim that Monsoon infringed their copyright as a result, and seek injunctions to prevent Monsoon from continuing to distribute the firmware, as well as damages.

The case will be significant (should it make it to trial) not only because it directly concerns the GPL, one of the more widely used free content licences, but also because it revolves around what is, in my opinion at least, the key part of any good free content licence: the requirement that derivatives be released under the same licence (the same essential concept is referred to as either "strong copyleft" or "share-alike"). The case may be the first test of whether such requirements are actually effective at compelling creators of derivative works to release those works under the same terms.

DLA Piper senior partner Mark Radcliffe also raises the very good point that the case will also revolve around exactly how the GPL is characterised - whether it is a copyright licence or a mere contract - which may have implications as to what remedies are open to people releasing their work under the GPL.

However, the case may not even make it to court, with Monsoon apparently looking to settle and make the source code for the firmware available, according to breaking reports.

You can see a copy of the BusyBox statement of claim here (PDF format).

Flickr user sues Virgin

I blogged a couple of months ago about the controversy surrounding an advertising campaign for Virgin Mobile Australia, which featured photographs taken from photo-sharing website Flickr. The photos were licensed under Creative Commons licences, but apparently the advertising company didn't ask permission from the photographers, and nor did they obtain model releases from the subjects of the photographs.

There's been plenty of speculation about what legal avenues might be open to both the Flickr photographers and their subjects, but it looks like we'll soon get some answers, as the family of one of the people pictured in the advertising campaign has sued both the Australian and United States arms of Virgin Mobile in a Texas court.

The suit was instigated by the family of Flickr user Alison Chang, who was photographed by fellow Flickr user and Chang's youth counsellor Justin Wong. That photograph was used in one of the Virgin advertisements, as can be seen in this photograph, accompanied by the caption "DUMP YOUR PEN FRIEND".

At this stage the suit seems to be based on actions in libel and invasion of privacy, based on news reports (I'm currently trying to find the actual court documents without much luck - does anyone know where Texas court documents are available online?). Virgin Mobile in the US has apparently sought to be removed as a party as it claims that it had nothing to do with the advertisements. Virgin Mobile Australia says that it fully complied with the Creative Commons licence (CC-BY-2.0) that the image was licenced under.

As another twist, the suit names a third defendant in Creative Commons; exactly what cause of action is claimed to lie against them at this stage is not clear.

This case is interesting because of the intersection of multiple types of intellectual property rights, along with other related rights. There are a whole range of rights which are potentially involved just in this fairly trivial case of one person taking a photo of another person, only one type of which - the economic rights of copyright - are dealt with by free content licences such as the Creative Commons licences. Should this case ultimately reach a decision (it may well face some jurisdictional problems) it is likely to have significant implications for the free content movement.