Open source has permeated nearly all aspects of technology, especially technology consumers interact with on a daily basis — whether that be in our computers, tablets, cell phones, and even our smart appliances. In fact, many of our smart TVs use open source software within the programs that make them run. Now to the average consumer, that might not mean much. After all, most people do not care to look under the proverbial hood and see the source code that makes the engine of their software run. Most of us do not care how software runs, whether that software is on our computers, our televisions, or our toasters — we just need it to work. However, part of the reason open source software has expanded is because it's in an ecosystem where developers and maintainers are trying to look at the code, use it, modify it, improve it, and even redistribute it. In fact, this concept is so integral to open source software, that many open source software licenses demand that any projects derived from licensed work also be open source, and allow others to use it, copy it, modify it, and distribute it. So, if a company does not adhere to the terms of the license, can you, as a consumer who should have the ability to view the source code of your smart appliances, sue them for breach of contract? If so, what does that mean for open source software licenses, including ethical open source software licenses, going forward?
In this blog post, Staff Attorney Sameeul Haque discusses the case of SFC v. Vizio, where a nonprofit organization is suing a television manufacturer for not adhering to the terms of copyleft open source software licenses. The blog post begins by providing a brief overview of open source software and open source software licensing. Then, it discusses how open source software has found its way into our televisions. Later, the blog provides a synopsis of the arguments made by SFC and where the case currently stands. Finally, the blog concludes by discussing potential remedies and the long term impact of this case if SFC takes this suit to verdict and is successful.
What is Open Source Software and Software Licensing?
Open source is a term for software code that is freely and openly accessible to anyone. Most of this software is governed by copyright law because nearly all open source software is accompanied by a software license - an agreement, like any other contract, that requires anyone who wants to use the software (a licensee) to abide by certain conditions created, typically, by the owner of the software code (a licensor). Because open source software is freely and openly accessible, most open source software licenses are fairly bare bones - only demanding that the developer/maintainer of the software not be held liable for any damages caused the software (otherwise known as a waiver of liability) and that the developer/maintainer receive some sort of attribution for his/her/their code. Additionally, many open source software licenses, also known as copyleft licenses, require that the derivative work, “work based on or derived from one or more already existing works,” also be open source. In the case of software, the derivative code must also be freely and openly accessible if the code it is derived from is licensed under a copyleft open source software license.
Depending on who in the open source community you ask, some argue that open source software must be allowed to be used for any reason, good or evil, without restriction to any fields of endeavor. Of course, we at CAL, and at the Organization for Ethical Source, believe open source can still have restrictions on how the code is used, so long as the code is still freely and openly available to anyone who wishes to use it. For more on that, check out our blog on “Advancing Ethical Licensing and the Launch of Hippocratic License 3.0.”
What Does Open Source Software Have To Do With Televisions?
Many of our devices have become much more technologically advanced than before. No longer are televisions simply broadcasting shows and movies from local television stations. Now they have built in hardware and software, more akin to a specialized computer. However, not all of this software is proprietary. Just as a lot of computer software relies on open source, so does software for smart TVs. While most of the open source code is not under an ethical license, there are still considerations a licensee must adhere to in order to use the code.
According to the Complaint filed by Software Freedom Conservancy, Inc. (“SFC”), SFC alleges that television manufacturer Vizio, Inc. (“Vizio”) violated two open source software licenses in the manufacturing of their smart TVs. The two open source software licenses are the GNU General Public License version 2 (“GPLv2”) and the GNU Lesser General Public License version 2.1 (“LGPLv2.1”) (together referred to as the “GPLs”). The GPLs are well known open source copyleft software licenses.
Vizio uses the software licensed under the GPLs in its “SmartCast” operating system, the operating system used to run its smart TVs. Operating systems are just software that manage other programs on a device, such as Windows and Mac OS for computers and Android and iOS for phones. Similarly, smart TVs each have their own operating systems, depending on the manufacturer. Vizio uses its own SmartCast operating system in its smart TVs. The code for this operating system is not freely or openly accessible. According to SFC, the SmartCast operating system uses several programs that are licensed either under the GPLv2 or the LGLPv2.1, and thus is required to make the code for its SmartCast operating system open source, allowing for the SmartCast software code to be viewed, used, changed, and distributed openly.
How can a nonprofit organization sue a television manufacturer?
While this may seem fairly straightforward, things start becoming more complicated when you examine SFC’s role in the lawsuit. SFC is not the licensor of any of the software used by Vizio in its SmartCast operating system, limiting some of the causes of action SFC could raise against Vizio. If SFC was a licensor, then it could sue for violations of its copyright under US federal copyright law. However, SFC is suing for breach of contract under California state law, alleging that they are a third-party beneficiary under the GPLs since they bought Vizio smart TVs and they had a reasonable expectation that Vizio would release their SmartCast operating system software code so that SFC could examine, use, modify, or distribute it.
A third-party beneficiary is a person who benefits from a contract without actually being one of the parties that agreed to perform the contract. For example, let’s say we have three individuals, Gina, Santiago, and Ashley. If Santiago agrees to paint Gina’s home if Gina gives Ashley ten music lessons, then Santiago and Gina are promising to perform certain acts under a contract. However, Ashley, as someone who is not agreeing to perform anything under the contract, is still benefiting from the contract being performed. Ashley is a third-party beneficiary. Additionally, if Santiago does paint Gina’s home and Gina does not give Ashley any music lessons, Ashley does have a legal right to sue Gina. Despite not being one of the parties agreeing to perform under a contract, a third-party beneficiary still might have the right to sue since they would receive some benefit from performance. In the suit between SFC and Vizio, SFC is claiming that, as a Vizio customer, it is a third-party beneficiary to the GPLs governing the software Vizio is using in its SmartCast operating system and thus, has the right to sue Vizio for its nonperformance of the GPL licensing terms.
What Is Happening In the Case Now?
Since SFC has filed its Complaint, Vizio responded by trying to remove the case to federal court, arguing that all of SFC’s causes of action were preempted by the Copyright Act and that federal courts had exclusive jurisdiction over causes of action under the Copyright Act. The Central District of California, a federal court, rejected Vizio’s request for removal and granted SFC’s motion to remand back to state court on the grounds that SFC’s claims for breach of contract were state law claims that were not preempted by the Copyright Act.
What are the potential remedies if SFC wins?
The case is far from over, with civil cases having the ability to go on for years before they are resolved, whether through a verdict, final judgment, settlement, or other means. However, if SFC were to be successful, it's unclear what the available remedies would be, in part because there are many avenues the court may take. Would the court force Vizio to release the source code for its SmartCast operating system, require Vizio pay SFC some sort of monetary relief, enjoin Vizio from using its SmartCast operating system until it makes the code for it open?
It’s unclear since many of these outcomes are at odds with how U.S. courts normally behave. For example, forcing Vizio to release the source code of its SmartCast operating system is a legal remedy called specific performance. Specific performance is when a court orders a party to follow through with its contractual obligations. However, courts are very reluctant to award this kind of remedy. Traditionally, if a party breaches a contract by refusing to perform an act under a contract, such as refusing to sell property, deliver a good, or perform a service, then a court would order the breaching party to pay the non-breaching party to try and make up for any damage the non-breaching party suffered, to try and make the non-breaching party whole. Even if specific performance is the outcome SFC wants, it’s unclear if the court would grant this kind of remedy given that courts rarely award it. For similar reasons, a court is unlikely to award an injunction against Vizio from using its SmartCast operating system until it complies with the GPL licensing terms. Injunctions of that kind are not common, and an injunction would be devastating to Vizio since all of their smart TVs would no longer be able to function without the SmartCast operating system.
That would imply that the court would likely order Vizio to pay some kind of monetary relief to SFC for nonperformance. But, how do you quantify SFC’s damage for Vizio’s breach of the GPL licensing terms? If the damage is even close to the cost of the Vizio televisions SFC bought, does that mean Vizio could be facing catastrophic potential lawsuits by other customers under a similar legal theory? And while courts regularly offer monetary relief for damages that are difficult to quantify (wrongful death, loss of consortium, lifelong injuries, etc.), what prevents the damage of Vizio’s noncompliance with the GPL licensing terms to be continuous and ongoing? If Vizio never makes the SmartCast operating system code open source, then does that mean SFC, or any other Vizio customer, can sue them again for their continued breach? Given the potential ramifications of granting monetary relief, the court in SFC v. Vizio may shy away from this remedy as well or may even award SFC with nominal relief.
Assuming the case moves beyond discovery and a motion for summary judgment, the uncertainty behind the kind of remedies the court would apply might be enough for Vizio to try and settle. However, while SFC identifies itself as a consumer for the purposes of this litigation, it appears that they are in this suit for the spirit of what it represents to open source developers and maintainers. Thus, they may not be as willing to settle as a traditional litigant would be. Additionally, if the case were to go to verdict, and the verdict was in favor of SFC, then it would not only reinforce the case law surrounding open source software licenses but also strengthen case law regarding consumers’ and other potential third party beneficiaries’ ability to sue under a similar theory in state courts. With copyleft provisions having additional case law to support their enforceability, other conditions within open source software licenses would also have increased likelihood of enforceability — such as the ethical standards provision in Hippocratic License 3.0 and other ethical open source software licenses.
Sameeul Haque is a Staff Attorney at Corporate Accountability Lab.
