Open Source Developer Wins Big – But Can He Collect?
Erik Anderson developed certain software that he contributed to BusyBox, a compact set of embedded Linux utilities licensed under the GNU General Public License, Version 2 (the “GPL”). In October 2008, Anderson registered a copyright on the code that he contributed.
On September 2, 2009, Anderson’s counsel notified Westinghouse that it was infringing Anderson’s copyright because it was distributing BusyBox – both integrated into Westinghouse televisions and separately with other software – on terms that are more restrictive than the GPL. Westinghouse continued infringing Anderson’s copyright.
Anderson and the Software Freedom Conservancy brought suit against Westinghouse and 13 other defendants on December 14, 2009. Westinghouse initially mounted a defense, but stopped participating in the suit when it filed for bankruptcy.
Plaintiffs won a default judgment (Software Freedom Conservancy v. Best Buy) against Westinghouse, which was permanently enjoined from future copying , distribution or use of BusyBox without permission. In addition, plaintiffs were awarded:
- Statutory damages of $30,000, trebled to $90,000 because of willful infringement;
- Reasonable attorneys’ fees and expenses in an amount to be proven; and
- Forfeiture of all infringing products to plaintiffs so they may be donated to charity.
Plaintiffs’ next challenge: Collecting from a defendant in bankruptcy.
Lessons to be learned:
- If you want to protect software that you have developed against unauthorized use, register the copyright for the software.
- If you are notified that you are infringing someone’s copyright, stop the infringing activity and / or enter into an agreement with the copyright owner to resolve the matter.
Dana H. Shultz, Attorney at Law +1 510 547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.
Contracts, Intellectual Property, Licensing, Litigation