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>Don’t Ignore Open Source License Terms

>If you embed open source software in a retail game or in gaming hardware, you should be diligent about compliance with the open source license terms. Otherwise, both you and your retailer may be in for an unpleasant surprise.

The Software Freedom Conservancy, the non-profit corporate home of the open-source Linux application BusyBox, and Erik Andersen, one of the program’s principal developers, recently filed suit against a number of technology manufacturers and retailers, including Samsung and Best Buy. The suit accuses the defendants of infringing the copyright for Busybox by using the program in consumer products such as DVD players and HDTVs in violation of the terms of its license (the GNU General Public License, version 2).

The complaint, filed the U.S. District Court for the Southern District of New York, claims that the defendants were advised that the terms of the GNU General Public License version 2 only allowed zero-cost use of the software as long as the licensee provided a means to distribute the source code to customers, which the defendants did not provide. Before launching the suit, the complaint claims the plaintiffs alerted the defendants to the alleged non-compliant use, but the defendants ignored or refused to respond to the notices.

In an interesting twist, another early principal developer of Busybox has stated that he is offering a ?Ç£waiver?Ç¥ of his copyright interest to the affected companies ?Ç£where appropriate.?Ç¥ He states that the lawsuit is being undertaken without his consent, even though he still holds a copyright interest in the version of BusyBox disputed in the lawsuit. It is unclear what effect, if any, this will have on the lawsuit.

The takeaway here is that companies, including those in the gaming world, should not ignore compliance notices related to open source software. The common misconception (that can lead to a lawsuit) is that open source software is ?Ç£free.?Ç¥ The reality is most open-source software can be used without paying a license fee, but only if some basic procedures are put in place to remain in compliance with the applicable license. Should you fail to comply, your retailers will not be happy when they are named as co-defendants.

Gavin George is an associate in the Intellectual Property Practice Group of Haynes and Boone. His practice covers all areas of intellectual property law, with an emphasis on technology transactions and data privacy in the information age. His practice includes technology agreement drafting and negotiation, intellectual property analysis and due diligence, and consulting on evolving data protection and social media issues.

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December 2009