Free Software Foundation Sues Cisco Over GPL

Cisco Systems is "a strong supporter of open source software" and believes it's "substantially in compliance" with the provisions of the Free Software Foundation's General Public License.

It is therefore "disappointed" that the Free Software Foundation has decided to sue it for alleged violations of the GPL, Cisco said in a prepared statement Monday after the FSF announced its filing.

The dispute flows out of Cisco's acquisition of the privately held Linksys Group in 2003 for $500 million. Linksys had been the target of criticism from open source advocates that it was using GPL code in its routers but not making the source code of the proprietary system that resulted available to its customers, as required by the GPL. The FSF complaint listed the GLIB C library, Coreutils C language utilities, the Readline C code editor, and Wget command for retrieving HTML files, all FSF-originated software, as being used in the Linksys products.

Cisco took steps to bring itself into compliance with the GPL after buying Linksys, "but the Free Software Foundation was never fully satisfied" by its efforts, said Michael Bennett, an intellectual property attorney with Wildman Harrold, a law firm in Chicago and Los Angeles.

Cisco said in its prepared statement: "We have always worked very closely with the FSF and hope to reach a resolution agreeable to the company and the foundation."

In its filing, the Free Software Foundation stated that it had already attempted to resolve outstanding issues through negotiations. "It appears the parties are deadlocked," said Bennett.

Open source licenses have already been tested once in court in the model railroad software case of Jacobsen v. Katzer. Upon appeal, that case decided that the Artistic License, a less frequently used open source license than the GPL, was enforceable in the manner of a copyright license. A violation of a condition of the license amounted to a violation of copyright, and made the violator subject to "injunctive relief" as well as monetary damages.

With teeth established for the Artistic License, the Free Software Foundation brought the case against Cisco with an apparent desire to see the same interpretation applied to the GPL. And that raises the stakes for Cisco, said Bennett.

If Cisco and FSF don't reach an agreement, the substance of the GPL is going to be tested in a U.S. court for the first time. Previous cases testing the GPL were filed on behalf of the authors of BusyBox, a set of Unix utilities issued under the GPL and used in a wide variety of products. In a series of cases over the past two years, BusyBox users have settled cases filed against them by Eben Moglin's Software Freedom Law Center rather than take the cases to court.

In each case, the defendant appointed a compliance officer, made source code available to customers as required by the GPL, and paid out an undisclosed sum to the BusyBox authors.

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.