Open Source Software enforcement – helping to reduce e-waste?

The Software Freedom Conservancy (SFC) has commenced litigation in the US against smart TV manufacturer Vizio for alleged breaches of open source software (OSS) licences. While a US case, this is interesting to monitor as the SFC is taking a novel approach to OSS enforcement which, if successful, could lead to businesses re-evaluating their risk-based approach to OSS compliance. It could also form an important part of the “right to repair” movement which is aiming to reduce e-waste – a particularly pertinent topic in the light of the ongoing COP26 summit.

The facts

The SFC claims that Vizio’s smart TVs, like many “smart” devices, use the Linux operating system as the basis for the Vizio “SmartCast” software (i.e., the bit which makes their TVs “smart”). This includes a number of OSS packages which are licensed under the GPLv2 and LGPLv2.1 licence agreements. Under these licence agreements (often referred to as “copyleft” licences), if the licensee distributes modified versions of the licensed software, the licensee is obliged to provide the source code of such modified software, which Vizio has failed to do . Vizio did initially respond to requests by the SFC to provide source code for the “SmartCast” software (providing six different versions) but none of those was deemed sufficient by the SFC. Vizio then ceased communications, prompting the SFC to commence proceedings.

A different type of claim

Unlike previous enforcement actions taken by organisations like the SFC and the Free Software Foundation (FSF), the SFC is not bringing a claim for copyright infringement on behalf of one of the developers of GPL-licensed software. Instead, the SFC is bringing a claim on its own behalf, as a consumer of Vizio’s products, having gone out and bought some of Vizio’s smart TVs. The SFC claims that it is therefore a third party beneficiary of the GPL agreements under US law, and so is able to enforce the terms which require publication of source code.  The SFC is not seeking damages, but rather specific performance of these obligations.

The consequences

If successful, this approach would make it a lot easier for organisations such as the SFC and FSF to bring enforcement actions against commercial entities for failure to comply with open source (GPL) licence terms.  As the SFC highlighted in their claim, it is the purchasers of products like the Vizio smart TVs who have the motive and information to enforce the manufacturer’s source code disclosure obligations – the developers who own the copyright are unlikely to be motivated to pursue this kind of action (for a variety of reasons).

The majority of sophisticated electronics use some form of the Linux operating system in order to perform their functions. If successful, this action could therefore raise the risk profile of OSS licence compliance (in particular any obligations to publish source code) among manufacturers, who may otherwise face a greater risk of enforcement action from organisations such as the SFC or indeed motivated individual consumers.

The environmental impact

One reason the SFC gave for bringing the case was to support the “right to repair” movement, which has been growing around the world. This movement is seen as an important part of the move to net zero. It seeks to prevent devices from ending up as e-waste because they cannot be repaired (for example if manufacturers fail to provide spare parts, or make devices which are essentially impossible to repair).

The UK and EU have recently implemented new rules which require manufacturers to provide spare parts for a limited range of goods (such as washing machines and televisions). However, with most modern devices (from cars to televisions), a lack of software support can be just as crippling as an inability to source a spare part.

The SFC hope that forcing manufacturers to disclose the source code for the firmware on their devices will lead to community support for devices which are no longer supported by the manufacturer, reducing the number of otherwise perfectly good devices which are discarded simply for lack of software support.  This has proven successful in the past – enforcement action by the FSF against Cisco in relation to Linksys routers led to the development of “open wrt” community software for routers.

Implications for businesses

The SFC’s case against Vizio is likely to take a long time to resolve, but businesses which distribute these kinds of smart devices (TVs, routers, set top boxes, etc.) should review their own practices and their OSS compliance, and also the compliance of their supply chain.  The information disclosed by the SFC showed that part of the initial delay in Vizio providing source code was down to reliance on a third party supplier.  The reputational impact of enforcement action against a business, coupled with the pressure to increase sustainability, means that ultimately this will be a good move for businesses.

The EU and UK, and the FTC in the US, have made it very clear that “right to repair” is high on their agendas.  In order to support net zero targets, it is expected that manufacturers will need to start designing products to be both easily repairable and sustainable, and supporting both hardware and software for a significant period of time.