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by on March 4, 2026
Earlier this week1, the U.S. Supreme Court (SCOTUS) denied certiorari (cert) in Thaler v. Perlmutter. Thaler contended that an image — generated by a Large Language Model (LLM)-backed Artificial Intelligence (AI) — deserved copyright registration. Since the U.S. Copyright Office refused to grant the registration, Thaler appealed to the U.S. District Court for the District of Columbia (DC Circuit). That Court affirmed the Copyright Office's decision. SCOTUS' denial of “cert” means they will not hear the case. Strictly speaking, this denial does not affirm the DC Circuit Court's ruling, but it does mean the DC Circuit decision stands.
Many in the Free and Open Source Software (FOSS) community raised concerns about the impact on copyleft — and even FOSS in general. TL;DR: Don't Panic! — this case is extremely limited in scope.
First, a proviso: this case is about copyright of an artistic image, not software. Copyright law — and the legal precedents around it — differ widely for different types of creative works. Analysis of the copyrightability of works of software varies in notable ways. Therefore, do not to assume that analysis for images apply broadly to software.
Second, while the decision is “published” 2, there are also many other cases related to LLMs and AI currently pending throughout the U.S. Courts. Courts and laws always lag behind technological advancement. Indeed, this is precisely why copyleft was invented: as a mechanism to achieve with existing laws and precedents what we could not accomplish in the legislature. Forty-one years after copyleft's invention, we still do not have a federal law that mandates software right to repair!
Third, the Court found that a registration was not valid (at this time) if the work's sole author is a computer program. Thaler (who was both (one of) the author(s) of that computer program and its user) repeatedly waived any claim to consider Thaler's own copyright in the LLM-backed AI prompting process. Thaler also did not argue any copyright interest in the LLM-backed AI system itself were subject of the registration. So, this decision does not evaluate any creative expression by (a) the author(s) of the prompts themselves, (b) copyrights held in the LLM, its weights, generation, curation, or its user interface, and (c) copyrights held in underlying works in the LLM training data.
Thaler's original registration was the root cause of this substantial narrowing because the registration contended that the AI system itself was the author of the image. This case only considers a copyright registration where the sole “author” is identified as a specific computer program. Thaler stipulated that the work was generated solely through prompts and no human modified the work thereafter. As such, even if the other districts begin citing this case regularly, and even if many districts decide it applies to software without further consideration of the difference in the types of works, such precedent causes no disaster for FOSS.
Admittedly, some LLM-backed generative AI agents can be merely prompted to create a work of software from scratch that has some transient utility. However, the most common workflow in using these agents (at least in FOSS development) is as follows:
Furthermore, dicta 3 — appearing in the DC Circuit ruling — supports a conclusion that the human actions on that third step would constitute creative expression — affixed in tangible medium — suitable for copyright registration. Indeed, their ruling states:
First, the human authorship requirement does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being — the person who created, operated, or used artificial intelligence — and not the machine itself. — (Thaler v. Perlmutter, 130 F.4ᵗʰ 1039, 1049 (D.C. Cir. 2025))
The Court also indicated these other issues are for a future time in another case. The DC Circuit readily admits that their ruling applies only to the state of AI systems at the time of writing4. Again quoting from their ruling:
Of course, the [Thaler's AI] Machine does not represent the limits of human technical ingenuity when it comes to artificial intelligence. Humans at some point might produce creative non–humans … Science fiction is replete with examples of creative machines that far exceed the capacities of current generative artificial intelligence. For example, Star Trek’s Data might be worse than ChatGPT at writing poetry, but Data's intelligence is comparable to that of a human being. See Star Trek: The Next Generation: “Schism” (Paramount television broadcast Oct. 19, 1992) (“Felis catus is your taxonomic nomenclature, an endothermic quadruped, carnivorous by nature”). There will be time enough for Congress and the Copyright Office to tackle those issues when they arise. — (Thaler, 130 F.4ᵗʰ at 1050)
[ As always, SFC is not a law firm, IANAL, and TINLA. ]
1 I — and my colleagues at SFC — acknowledge that SCOTUS made other decisions recently regarding an array of important social justice causes. Since SCOTUS' decision to deny cert in this particular case is so closely related to my work, I'm writing about it. However, all of us at SFC acknowledge that our community is reeling from other recent decisions.
2 In this context, “published” is a term of art that lawyers use to describe a case that the publishing Court (in this case, the DC Circuit) felt was important enough to “share officially and formally” with other Courts. While (in a precedent-based legal system) any Court can cite an unpublished case from another Court, published cases are much more likely to be cited than unpublished ones.
3 “Dicta” is explanatory language found in a court's decision that isn't necessary to the court's conclusion. . Dicta isn't precedential but it can be persuasive.
4 Note that the DC Circuit issued their ruling in March 2025. It is not uncommon for SCOTUS to delay for a year (or more) before issuing a ruling to grant or deny cert.
by on January 26, 2026
We at Software Freedom Conservancy are disappointed at some surprising news. Two weeks ago (THU 2026-01-08), we had our original pretrial motions hearing scheduled in our historic impact litigation against Vizio. Just about an hour before the hearing's start-time, Judge Sandy Leal issued a minute order that rescheduled the hearing and (effectively) removed the trial (which was set to start on Monday 12 January 2025) from her calendar.
The rescheduled hearing date was Monday 2026-01-26 at 09:00. At 08:15 that morning, our attorneys were contacted from the Court Clerk that the hearing was again postponed..
We have been in this litigation against Vizio since October 2021. Vizio violated both the General Public License (GPL) and Lesser GPL Agreements. Vizio's “Smart” TV products include more than a dozen packages under these copyleft licenses, yet Vizio has continually failed to comply with these agreements in various ways — most notably (and including but not limited to) by (a) not providing complete, corresponding source code, (b) not providing “the scripts used to control compilation and installation of the executable[s]”, and (c) not providing object code necessary for relinking the LGPLv2.1'd works. We were looking forward to our days in Court that week to show the world all the details of Vizio's non-compliance, and to ask the Court to acknowledge (among other things) our right as a third-party beneficiary under the GPL Agreements to receive all the materials that those Agreements require Vizio to give to all consumers who purchase their devices. These devices, BTW, are called “Smart” TVs because what's inside is actually a small (but powerful) computer attached to the giant video display — driven and controlled largely by copylefted FOSS.
Notwithstanding our frustration, our trial was delayed for good reason. Another case — even older than ours — needed more time for their jury trial (and thus had priority over ours). While some criticize the USA for being “too litigious”, we at SFC believe firmly that the civil Courts are the best place where ordinary citizens and small, scrappy non-profit charities like SFC can seek justice when our rights are violated. We also know that there is more injustice in our country these days than anyone would like, and this delay occurred because there are other folks out there seeking justice on other important issues and rights, too.
We understand that we've been waiting for a long time in a very long queue in the California Courts, and while we (like everyone) get frustrated when the line is taking much longer than expected, we also appreciate that Judge Leal is carefully managing her docket to grant all parties an impartial opportunity for justice.
Attorneys for both SFC and Vizio are now negotiating with the Court for rescheduling. We hope the pretrial hearing will be scheduled fairly soon. We will update here and on the Fediverse as we know more.
We'll spend the next few weeks posting the various recent motions and filings in the case, and publishing some retrospective summaries of the last four and a half years of the case for you all to read.
Be sure subscribe to our feed in your RSS readers/aggregators and follow us on the Fediverse (via Mastodon or your preferred ActivityPub software). to receive updates!
by on December 12, 2024
Since the Linux project removed a number of entries from the MAINTAINERS file, all of whom were putatively Russian, in October, we've been receiving questions about U.S. sanctions against Russia and what, if anything, we should do about them. As I explain below, our position is that such drastic action, though defensible, is unnecessary.
What would compel the Linux project to take action against specifically Russian
contributors—and is it a good enough reason such that other FOSS project should follow
suit? The Linux project has access to the lawyers of the Linux Foundation, after all. Unfortunately,
the Linux project's initial announcement said only that the removals were due to various
compliance requirements.
The announcement added that the Russian contributors can
come back in the future if sufficient documentation is provided.
But it didn't say what sort of
documentation would be required. Linus Torvalds added a little clarity when he said that
"sanctions" were the cause.
Speculation quickly centered on Executive Order (“EO”) 14071, one of the U.S. sanctions against Russian. It had recently been expanded to include software development and IT services, just a month before the Linux project's announcement. (EO 14071 dates to April 2022, but its scope is expanded from time to time to include new industries.)
The problem with this theory is that EO 14071 doesn't apply to contributions from a Russian national to a software project (even though it now applies to software development). It is true that, when a Russian national makes a copyrightable contribution to a software project governed by the GPL, the Russian national enters into a contractual relationship with (at least) all downstream distributors. But EO 14071 doesn't sanction any and all contractual relations with Russian nationals. It only prevents the provision of certain software- and IT-related services (including software development and consulting) to Russian nationals from a “U.S. person”. In other words, EO 14071 works in reverse to the Linux project's situation.
So, if it's not EO 14071, could it be some other U.S. sanction? There are, after all, quite a number of them. On October 24, James Bottomley provided something of an answer. Citing Linux Foundation lawyers, Bottomley wrote that the Linux project means to exclude companies on the U.S. OFAC SDN lists, subject to an OFAC sanctions program, or owned/controlled by a company the list.
(OFAC is the Office of Foreign Assets Control, a division of the Treasury Department, in charge of maintaining these sorts of sanctions. SDN means “Specially Designated Nationals,” i.e., persons and businesses, as opposed to entire regimes.) Under this analysis, the documentation referenced in the initial announcement would be paperwork tending to prove that the contributor did not work for such a sanctioned company.
Alas, this doesn't tell us very much. Not only are there several U.S. sanctions against Russians, which cover different activites and serve different purposes, but each of them affects its own set of (overlapping) Russian parties. Wading one's way though these sanctions is a slog that almost no FOSS projects can possibly wade through. You have to parse the actual statutory and regulatory language, review later regulations and executive orders that might alter the sanction's scope, check whether a given Russian individual or entity is subject to that particular sanction (because two given sanctions don't necessarily apply to the same Russians), then check whether your activity or relationship with that Russian individual or entity is covered by the sanction. (On the upside, the U.S. government provides a handy website that allows you to check which sanctions, if any, affect a particular Russian person or entity. But, even if you can be sure you've checked the right person/entity, you still need to determine whether the sanction actually applies to your own activity.)
This is a lot of work. And I think that explains the Linux project's cautious approach: namely, suspending all Russian contributions to the project temporarily; then checking each contributor, case-by-case; and (presumably) reinstate them if they don't show up on any sanctions list. Even this strategy might not be feasible for many if not most projects. They might be more reliant on Russian contributions, be less able to withstand the blowback from sudden suspensions, or simply lack the legal resources.
In my view, none of the Russian sanctions prevents Russians from contributing to American-based software projects governed by the GPL. While the approach taken by the Linux project is reasonable and understandable, I do not believe SFC's projects to take similar actions at this time.
Besides, the spirit of FOSS, I think, requires a bias toward acceptance of otherwise valid and competent contributions. The goal is great software that, in many cases, affirmatively improves people's lives. Rejecting good contributions undermines that goal. Further, rejecting otherwise good contributions does nothing to further the sanctions' goals. The sanctions are primarily intended to punish Russia for, and to degrade its ability to conduct, its interference in U.S. elections, its flouting of international rules, and its aggression in Ukraine. It is difficult to see how rejecting Russian contributions furthers any of these goals.
There remains one final mystery. Some of these Russian sanctions are several years old, so why is this an issue now? My best guess is that EO 14071 brought the issue of Russian sanctions to Linux Foundations's attention because it was explicitly directed at software development. Even if EO 14071 was found to be inapplicable, Linux Foundation couldn't ignore the whole raft of other Russian sanctions, which would take time to sort through.
Ideally, we could keep geopolitics (and lawyers!) out of FOSS. But that's not always possible. U.S. sanctions are one reason. There's no harm in being cautious, so long as the spirit of FOSS is respected. Different projects and organizations will reasonably come to different conclusions on this matter.
Links to the documents referenced above:
by on October 12, 2023
In SFC's ongoing lawsuit against Vizio asking to receive the source code for the copylefted components on their TVs, last week we had a hearing with the judge to discuss the Motion for Summary Judgment that Vizio filed (requesting that the court reject our case before it even went to trial). A couple of our staff attended in-person (in an Orange County courthouse in Southern California) while others, like myself, watched remotely.
I was hoping to be able to use a standard interface to view the proceedings (such as streaming video provided to a <video/> element on a webpage), but unfortunately that was not available. The only way to view hearings in this court remotely is via Zoom, which SFC has talked about recently. This presented me with a conundrum - do I join via Zoom to see what was said? Or am I prevented from accessing this civic discourse because the court chooses not to use a standard video sharing method, preventing a large segment of society from taking part? As part of their normal practice, the court does not record (nor allow recording except through an official court reporter that can be hired by the parties to take a textual transcript) of proceedings, so I needed to decide with some urgency how to proceed, as failing to join now would mean I couldn't see the hearing at all, neither now nor in the future.
I am not sure how other countries approach this problem, and maybe it is no different elsewhere, but it did concern me deeply how this technical decision to demand the use of proprietary software could leave so many people disenfranchised, both with respect to their legal system, and other public services as well.
As part of SFC's policy to allow the use proprietary software if it is critical to our mission, I decided that it was more important for me to be able to view the proceedings (and avoid charging many hundreds of dollars to SFC for an international flight and hotel). Note that SFC would never require this of me, and would gladly pay for me to attend in-person to avoid the proprietary software, but I felt personally it was the right decision for me to make in this context.
Once this dilemma was resolved (for better or worse), I went through the technical steps required to join the Zoom call for the court hearing, where I was presented with this text:
By clicking "Join", you agree to our {0} and {1}.
Now there were no links to {0} or {1}, so I made some guesses as to what I was agreeing to. In the best case, I was agreeing to nothing, and in the worst case I was agreeing that 0 and 1 provided the foundation for all humanity which, while potentially troubling, did have a certain appeal as a technologist. In any case, I clicked Join (possibly leaving an indelible mark on the future of the universe) and was at last able to observe the hearing, after dialing in by (SIP) phone for the audio, to reduce the amount of proprietary code being run for me to view the hearing.
The hearing event itself was familiar to those who have attended such court proceedings - there were many other cases heard that day, that touched on issues such as whether you could get a DUI while riding a horse (answer: yes), to much more serious and unfortunate clear instances of DARVO tactics in domestic disputes (which we hope will not ultimately sway the judge). It appeared the judge wanted to save our hearing for last, possibly due to its complexity or novelty. The lawyers in most of the other matters appeared remotely.
Once the other cases were heard, the judge turned to us, with both our lawyers and Vizio's lawyer physically present in the courtroom. She asked Vizio to go first (since it was Vizio's motion), and their lawyer went over the points from their Motion for Summary Judgment, eventually clarifying seven specific objections Vizio had made to our case in its motion - the judge had clearly read our brief and wanted to know more on these seven topics given how we addressed them.
It was a bit jarring to hear my own name mentioned in court, as one of the objections was to an email I had sent to Vizio when we informed them they were violating the GPL. While not a problem for our case, it reminded me of the need to be extra careful, since anything we say to a company who violates the GPL can end up in court. But it also reminded me of why it is important we do this: if people feel scared to file lawsuits when companies fail to comply with the software freedom licenses they choose to use, then we at SFC must step up and use our resources and substantial experience to make sure the unfounded claims by companies of how they should be able to get away with violating are firmly rebuffed.
After Vizio's lawyer had finished, the judge turned to our lawyers for a response. Our lawyers presented an excellent litany of reasons why SFC's case is not preempted by copyright (for example, there is an extra element, provision of source code, that copyright remedies do not provide), and why we have rights as a third-party to the GPL contract between Vizio and the developers of the software that Vizio chose to use (as an example, the GPL itself clearly states, "You [Vizio] must make sure that they [third-party recipients such as SFC], too, receive or can get the source code").
Our lawyers finished with some examples of how contract law works, where if you agree to make some copies, but don't pay the money required in the contract, then that's a contract claim, not a copyright claim. In that case, a party has stiffed the beneficiary on the money. And in our case, as our lawyer so eloquently ended the hearing: "Vizio has stiffed us on the code".
We are extremely proud of our lawyers in this case, especially the two lawyers who argued in-person for us on Thursday: Naomi Jane Gray and Don Thompson, as well our General Counsel Rick Sanders. Whether companies are held accountable for following the software right to repair licenses they choose to use is immensely important - they need to give us the same rights they have, and we're incredibly happy that our legal team are so laser-focused on this.
We look forward to hearing the judge's decision on this motion when it comes out (in the meantime, you can read the hearing transcript if you like). Whatever the result, we will keep fighting for your software rights, everywhere software is used, using the legal mechanisms available (when required), to make sure everyone can control their technology.