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One More Small Step Toward The Right to Software Repair

by Bradley M. Kuhn on December 28, 2021

Our Motion to Remand in Vizio Lawsuit Shows How the Law Brings Software Freedom to All Users

Yesterday afternoon, we filed a Motion for Remand in our lawsuit against Vizio for their flagrant GPL & LGPL violations, alleged with great detail in our complaint in California state court. Vizio's response to that complaint was to “remove” the case to federal court. Vizio argues that the lawsuit can only be brought by a copyright holder as a copyright infringement lawsuit in federal court. In response, we have asked the federal court to return (“remand”) the case to state court.

While Vizio's original request to “remove” the case from state court to federal court is, in the general sense, a standard litigation tactic and our response is a relatively standard response (on which we expect to prevail), the implications of these early procedural maneuvers deserve special attention for those of you that care deeply about copyleft as a strategy to achieve software freedom and rights. If you seek a deeper understanding of these essential issues in copyleft policy, we encourage you to first read our motion to remand, and then read this article as supplemental strategic context for that filing.

Many of our longstanding Sustainers will recall that we previously have enforced the GPL for BusyBox in federal court. As part of that large lawsuit against 14 defendants, we learned how the process of copyright-only GPL enforcement works in US federal court. We still believe that federal litigation brought by copyright holders is an essential component of copyleft enforcement.

But many lawyers have advised us that contract law is a useful parallel avenue. This approach has the advantage of empowering users of the software who are not necessarily copyright holders. The mantra of “the GPL is not a contract” is a mistruth that has been so often repeated that it became widely accepted and typically unchallenged. (We expect you'll hear this theory repeated even more loudly now that the our Vizio lawsuit brought the question to the forefront in a federal court case.) Yet, prominent legal experts outside of FOSS social circles have long scoffed at the assertion. Indeed, case law in the USA has held the opposite. In multiple cases, courts have been convinced, specifically, that the GPL operates as both a contract and a copyright license. The law appears clear on this, and this is among the reasons why we believe our motion to remand will succeed. In short, we'll say it plainly here and now for everyone: the GPL operates both as a copyright license and as a contract; litigation can proceed under either of those legal theories. Our motion to remand in the Vizio case explains the legal details as to why that's true.

While this seems a minor matter of legal detail, it stems from the longstanding and fundamental principles of copyleft itself. Specifically, the point of copyleft was not to further empower copyright holders. As early as 2001, I and other copyleft proponents already argued publicly that copyleft was a method for software authors to unilaterally disarm the inappropriate power held by copyright holders when they created software. Like the Constitutional Bill of Rights in the USA (which exercised government power by guaranteeing each citizen's rights), the GPL allows software authors to exercise their power in choosing a license to grant rights to all software users. Those users deserve the right to seek redress when companies impugn their rights. In short, the GPL was designed as a tool for software authors to exercise their default power of licensing control to benefit the general public (instead of only themselves).

Accordingly, this legal diversification of claims is not only a tactical matter. It's not an esoteric debate; it drives to the very heart of copyleft's policy goals. Our Vizio case is landmark GPL litigation because, in addition to seeking the source code for our immediate use to create alternative firmwares, the lawsuit trailblazes a path for consumers to assert their software right to repair. If the entire case is ultimately successful, we will have shown that individual users who purchase a device and wish to repair the copylefted software in it have a fundamental legal right to take action on their own to seek redress from the court.

Further, our claim in this lawsuit asks for what lawyers call specific performance. CCS for a specific product has unique value that cannot be replaced by awarding monetary damages instead. Once ordered to specifically perform, the vendor has no choice but to produce the CCS for all copylefted software. Our lawsuit focuses on this remedy under contract law because it is the most relevant to the policy aims of the GPL. In short, money is no substitute for CCS, and we plan to explain why to the Court as the case continues.

Nevertheless, copyright litigation under GPL also remains an important tool, and we expect that we'll work with our lawyers to bring copyright claims again in the future — when that's the best tool to do the job that needs to be done. However, we believe a consumer-led enforcement strategy (which doesn't require holding copyrights) empowers users in a fundamental way and is consistent with GPL's original policy goals. As it stands today, we receive regular reports from individuals who request source code for GPL'd devices, only to have companies ignore them — unless and until a copyright holder assists them. We provide that assistance when we can, but realistically we can't commit to provide such assistance for every copyleft violation in the world. Companies (at their peril) rely on the false notion that they need only fear a copyright holders' accusation of copyleft non-compliance. We seek to change these anti-patterns — starting with our lawsuit against Vizio.

The Vizio lawsuit may take years to complete, but we are confident that we'll win this first skirmish. We believe the remedy we seek — that Vizio acknowledge their obligations under relevant copyleft licenses and release the CCS — is reasonable and achievable. While we pursue that remedy, we know that not everyone will have the time or inclination to study every move in this lawsuit. If you don't have the time to do that, we thank you now for the trust you've shown by donating to our organization to support this work. We assure you that we take the public trust of our charitable mission very seriously and will focus this work, including our litigation, to benefit the general public. However, if you have the time and inclination, we again commit ourselves to transparency and updates like this one to explain to you the nuances and important fundamental issues of strategy that inform our every decision in our copyleft enforcement work. We believe in the power of copyleft to bring consumers a meaningful right to software repair, and we believe in upholding that right under the full scrutiny of that same public.

We thank all of you so much for your support of our work, and the many encouraging emails that so many of you have sent us about this Vizio lawsuit. While I always hate to ask for money, I'd be remiss if I didn't note that your donations helped us get to this point, and I ask that you take a moment to become a sustainer during our match donation period, which ends soon.

Please email any comments on this entry to info@sfconservancy.org.

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