US court backs open source licence over TV maker's restrictions

Westinghouse Digital was the maker of the TVs but during the course of legal proceedings submitted itself for a process that was an alternative to bankruptcy in California and did not oppose the claims in court.

It had included BusyBox software in its high definition TVs. BusyBox is a set of programs for embedded systems, part of which was written by Erik Anderson. He released his software under the GNU General Public License (GPL) Version 2, a licence used by open source programmers that allows others to use material for free under certain conditions.

Those conditions include the demand that any improvements or changes be licensed under the GPL to ensure that others have free access to it.

Anderson and Software Freedom Conservancy, a lobby group defending open source software, said that Westinghouse Digital had distributed the software but restricted it to personal, non-commercial use only against the terms of the GPL.

The US District Court for the Southern District of New York ruled that Westinghouse Digital had infringed the copyright of the software's creators.

"Westinghouse infringed on [Anderson's] copyright by distributing BusyBox within firmware for its HDTV products and on software intended for those HDTVs, in a manner that did not comply with the License," said the Court.

The Court ruling said that Westinghouse Digital continues to infringe copyright, despite being informed of the breach of the GPL.

"It is unlikely that, unless enjoined, Westinghouse will cease its ongoing violation of [Anderson's] exclusive rights," the Court said, granting a permanent injunction preventing the company from distributing anything containing the software.

The Court also tripled the damages to be paid by Westinghouse Digital because the copyright infringement was said to be 'wilful'.

"After being notified of its unlawful activity, Westinghouse knowingly continued distributing the BusyBox software in violation of [Anderson's] copyright," said the Court. "That is the very definition of wilful infringement."

The Court awarded $30,000, the full amount of statutory damages, then tripled it to $90,000 because the infringement was wilful. It also ordered that Westinghouse hand over all the TVs in its possession which contain the BusyBox software, which Anderson and Software Freedom Conservancy said they will donate to charity.

"This order of default judgment marks the first time a court in the USA has granted an injunction ordering a GPL violator to permanently cease distribution of out-of-compliance GPL'd software," said a statement from Software Freedom Conservancy, which provides financial and administrative services to open source projects which join it. It also helps those projects to take court cases, in conjunction with the Software Freedom Law Center (SFLC).

"Conservancy is proud to provide GPL enforcement services to its member projects. These enforcement services complement the many other non-profit management and organizational services Conservancy also provides to its many member projects," it said.

The Court case was taken against 14 companies, including Samsung Electronics, JVC and Best Buy, but this ruling only settled the Westinhouse Digital case.