BusyBox takes out bankrupt opponent in GPL lawsuit

The person behind a set of GPL-licensed Unix utilities called BusyBox has been engaged in a lawsuit against a dozen consumer electronics companies, accusing them of violating his copyright. The companies allegedly have been distributing hardware (including HDTVs) that includes BusyBox, but then licensing it to consumers under GPL-incompatible terms.

In late July, the judge in the case issued a summary judgement against one of the defendants, Westinghouse Digital Electronics, which stopped participating in the case when it entered bankruptcy protection. The ruling isn’t a sweeping victory for the GPL, but it does show that the GPL is compatible with the standards for summary judgement.

BusyBox is a set of command line utilities that are specifically designed to run in constrained embedded environments. At compile time, different capabilities can be left out, reducing the size of the binaries, and efforts are made to make them memory efficient. This makes the software an excellent candidate for use in consumer electronics devices, which seem to have been the items of interest in this case.

The man behind BusyBox, Erik Anderson, had registered a copyright on BusyBox and licensed the code under GPL v2. Represented by the Software Freedom Conservancy, Anderson started complaining to electronics manufacturers that had been shipping hardware with BusyBox but licensing it to users under terms incompatible with the GPL. Shortly afterwards, having failed to receive satisfactory responses, Anderson sued, later adding further defendants.

Westinghouse, which made digital TVs, had initially hired lawyers to represent it, but then entered a form of bankruptcy protection as the discovery phase of the suit started. In the end, it never responded to requests for documents, and its lawyers were told that their services were terminated (they finally asked to withdraw from the case). Anderson and the SFC then asked for a judgment against Westinghouse on the grounds that it wasn’t participating in discovery.

In her ruling, Judge Shira Scheindlin notes that “Rule 37(b) of the Federal Rules of Civil Procedure permits a court to sanction a disobedient party for failing to comply with a discovery order.” In this case, the sanction was a default judgement. “Having accepted all the well-pleaded facts in the Complaint as true, Westinghouse infringed on Plaintiff’s copyright,” she concludes.

Implicit in that acceptance is that a key feature of the GPL, its requirement that further distributions also be made under the GPL, can be part of a well-pleaded case. That doesn’t mean it would hold up for this particular case once trial lawyers have their way with it, but there’s no obvious legal shortcoming to its use against Westinghouse.

Also notable here are the damages involved. Since Westinghouse had continued to ship the software after being notified of its copyright issues, Scheindlin ruled that the infringement was willful, and therefore the company deserved a trebling of damages. Despite the fact that this was large-scale, commercial copyright infringement, those damages add up to a total of $90,000.

Basically, Westinghouse gets off easy in comparison with those who have shared music on P2P sites ($675,000 and $1.92 million, in the first two cases to go to trial) because it only shipped a single software package, even though it was done for commercial gain.

Anderson and the SFC will also get legal fees, and will have the right to any unsold inventory that includes Busybox. Unfortunately, they’ll have to get in line with the rest of Westinghouse’s creditors, so there’s a chance they’ll see very little of their court-ordered cash.

In the meantime, the court case against the remaining defendants is presumably making its way through discovery, so there’s a chance that the GPL may still wind up getting its day in court.