The Cisco case, however, pits the founder of the Free Software Foundation, Richard Stallman, against a powerful equipment supplier that has dug in its heels. Stallman, who wasn't involved in the BusyBox cases, is believed to be unlikely to settle for a sum of money, token or otherwise, and a posture of compliance.
If Jacobson v. Katzer is held to apply to the GPL as well as Artistic License, then it would "entitle the FSF to injunctive relief, and that's a big stick to carry," stated Bennett. A motion for injunctive relief, "if successful, could shut a manufacturer down," or shut down Cisco's manufacture of its Linksys product line, he added. Thus, the Cisco case may bring about a ruling on the injunctive powers of the GPL for the first time in a U.S. court.
"Cisco takes its open source obligations and responsibilities seriously and is disappointed that a suit has been filed by the FSF related to our work with them in our Linksys Division. We are currently reviewing the issues raised but believe we are substantially in compliance," the company said.
In the Jacobsen v. Katzer case, a U.S. Court of Appeals upheld the right for a software supplier to collect monetary damages under the provisions of the Artistic License. If the same interpretation were applied to the GPL, it's not known how a court would interpret monetary damage for a product that is freely downloadable and given away.
"If the only damages that could be collected were monetary, someone (for the FSF) would have to stand up there and argue, 'I'm damaged monetarily, even though I give the software away.' A case can be made along those lines but it's difficult," Bennett noted. The ability to seek injunctive relief is probably the larger danger to Cisco, he added. Another basic provision of the GPL license, the one that requires those who make use of GPL code in a product to make their proprietary source code available to customers, may also be addressed in U.S. court for the first time.
Bennett said: "Copyright law is clear, but some argue the GPL is not. If you create a derivative work that incorporates GPL code, and if the GPL is enforceable, then you need to make your proprietary code open source." On the other hand, "If you have a product that is separate from, but interacts with, GPL code, if it's merely interacting on the edges, then probably not. Where does the line [between the two cases] lie? It would be interesting to see how a judge and jury react to that issue."
In the BusyBox cases, the targeted parties found the cost of compliance relatively minor compared to cost of litigation and sought a way to settle their suits. In the Cisco case, the opportunity to settle has ended in deadlock. As a result, the untested provisions of the GPL may come under a U.S. court's scrutiny for the first time, with the stakes in case of failure high for both sides.