Free Software Foundation Sues Cisco: Some Criticism

The Free Software Foundation (FSF) recently sued Cisco Systems for copyright infringement. The FSF alleges that Cisco distributed, and continues to distribute, the GCC Compiler and other FSF programs without permission. After looking through the complaint, it appears to me that one argument pushed by FSF could be the reason the matter has gone this far.

The FSF alleges that Cisco distributed its GPL- and LGPL-governed code within certain firmware included with Cisco Linksys routers. The FSF claims that because Cisco did not and does not make the corresponding source code available, Cisco is not licensed to make the firmware distribution. According to the FSF, the parties have had repeated and lengthy discussions in settlement but Cisco continues to make infringing distributions.

I know next to nothing about this dispute, but I suspect something is awry. Presumably, when faced with a claim of non-compliance, Cisco investigates. I'm sure that Cisco respects the copyrights of others and has a legal department that will take all reasonable steps to be compliant. If Cisco's products did in fact infringe, I can't help but believe that the company would have either taken effective steps to stop distributing any infringing code or simply come into compliance with any applicable licenses (i.e., make its source modifications available). What is going on here?


The answer, I suspect, is that the Free Software Foundation is not accepting compliance with the GPL as a solution. It wants more. Here's how it thinks it can do that.

According to the Free Software Foundation, under the terms of the GPL and LGPL, Cisco's right to distribute the programs "automatically terminated the instant that [Cisco] made non-compliant distribution of the [licensed program] in its [firmware]." The FSF claims that it, and only it, can reinstate that right. And here's the kicker: FSF thinks it can impose any obligations on Cisco that it likes, even in addition to the conditions of the GPL and LGPL. In this case, the FSF is saying that before Cisco may enjoy renewed benefits of the GPL/LGPL, the company must: come into compliance, appoint a free software compliance officer within Cisco, notify all past recipients of FSF code of their right to receive corresponding source code, and compensate FSF for Cisco's past distribution of FSF programs in a manner that did not comply with the free software license.

I know a little something about how large technology companies operate, and I can tell you with virtual certainty that Cisco will never, ever, agree to appoint a free software compliance officer as a part of a negotiated settlement of a licensing matter. If FSF is pushing this, then we've discovered the reason the parties are now in court. That's a shame.


The whole argument that the GPL/LGPL terminates the instant a licensee makes a non-compliant distribution and that only the FSF can, at its choosing, reinstate the license, is structurally unsound. The GPL is a public license granted to each party who obtains a copy of a software program governed by its terms. It makes little practical sense to say that the license terminates with respect to one licensee or another when the code remains available to everyone under the same broad license. It flies in the face of public licensing to say that a licensor may, for some licensees, reinvent the terms of the license as it chooses after an act of unwitting non-compliance. Does every licensor get to remake the rules, or does FSF think it has special powers?


How can the system founded upon the idea that software code should be collectively developed through the efforts of multiple developer-licensors be organized around a license that allows a single contributor to yank rights and refuse to reinstate them? Doesn't this potentially disrespect the desires of the other contributors?

I (personally, and not on behlaf of Adobe) urge the FSF leadership to reconsider this unprincipled argument. Its case works just fine without it, and the foundation loses legitimacy when it overreaches. The goal should be the enforcement of copyrights (through injunction and damages) to achieve the compliant distribution of code under the GPL, as written. Neither FSF or any other GPL licensor should be entitled to-- or interested in-- re-making the rules.


Here's the complaint.