GPL legal battle: Vizio told by judge it will have to answer breach-of-contract claims

The Software Freedom Conservancy (SFC) has won a significant legal victory in its ongoing effort to force Vizio to publish the source code of its SmartCast TV software, which is said to contain GPLv2 and LGPLv2.1 copyleft-licensed components.

SFC sued Vizio, claiming it was in breach of contract by failing to obey the terms of the GPLv2 and LGPLv2.1 licenses that require source code to be made public when certain conditions are met, and sought declaratory relief on behalf of Vizio TV owners. SFC wanted its breach-of-contract arguments to be heard by the Orange County Superior Court in California, though Vizio kicked the matter up to the district court level in central California where it hoped to avoid the contract issue and defend its corner using just federal copyright law.

On Friday, Federal District Judge Josephine Staton sided with SFC and granted its motion to send its lawsuit back to superior court. To do so, Judge Staton had to decide whether or not the federal Copyright Act preempted the SFC's breach-of-contract allegations; in the end, she decided it didn't.

"Vizio 'removed' the case to federal court by claiming that the GPL operates as only a copyright license, and never as a contract," said Bradley Kuhn, policy fellow at the Software Freedom Conservancy, in an email to The Register. "We have countered that it operates as both, and that the source code provision specifically gives third parties (ie, downstream users) a contractual right to demand complete, corresponding source code (as defined in the GPL)."

Were the GPL interpreted to be only a copyright license, the SFC would have appealed, according to Kuhn, because its complaint asserts only contractual claims and not a copyright claim. Judge Staton agreed with the SFC's arguments, finding that the GPL functions both as a copyright license and as a contract.

The extra element

Citing Versata Software, Inc. v. Ameriprise Fin (2014), which recognized the GPL imposes an "extra element" - a contractual obligation - beyond what's required by copyright law, the judge in her order [PDF] wrote, "There is an extra element to SFC's claims because SFC is asserting, as a third-party beneficiary of the GPL Agreements, that it is entitled to receive source code under the terms of those agreements."

"The ruling is a watershed moment in the history of copyleft licensing," said Karen Sandler, executive director of Software Freedom Conservancy, in a statement. "This ruling shows that the GPL agreements function both as copyright licenses and as contractual agreements."

The SFC said it first contacted Vizio in August 2018, to ask the company to publish its SmartCast platform source code, which relies on the Linux kernel, alsa-utils, GNU bash, GNU awk, bluez, BusyBox, and various other software applications, libraries, and frameworks released under the GPLv2 and LGPLv2.1 licenses.

Vizio responded in January 2019, by providing the SFC with what it claimed was the complete source code for the software in its smart TVs. But, according to the SFC, Vizio failed to include all the files and scripts necessary to compile the software into executable form.

This back and forth went on for two years until the SFC finally sued Vizio [PDF] in October, 2021. The complaint argues that providing the source code to the public is important so that software developers can implement improvements, such as privacy protection, something that Vizio is unlikely to implement because it benefits from collecting user data.

"Had Vizio produced the source code for the Linux kernel, for the other SmartCast programs at issue, and for the library linking programs, as used on Vizio Smart TVs, a community of software developers would have had the opportunity to modify them to protect user privacy or improve accessibility," the complaint stated.

"This remains true today, and this need for consumer privacy and accessibility will be even more important in the future as consumers become more integrated and dependent on computers and other interconnected 'smart' devices for their daily lives."

Vizio in 2017 agreed to pay $2.2 million to settle charges brought by the US Federal Trade Commission that it collected the viewing data from 11 million of its TVs without folks' knowledge or consent.

Getting some competition

Kuhn said the SFC brought the case against Vizio to build alternative firmware for Vizio TVs and to exercise the right to repair and improve one's own devices.

"Ultimately, most TVs on the market today aren't really televisions: they're computers attached to a big display," he said. "We want to use those computers that we bought to do interesting and different things than the original TV manufacturer (in this case, Vizio) intended."

"We also want the right to repair the software on our devices," Kuhn continued. "The GPL and LGPL give us the right to do that, but when Vizio violated those licenses, they took our rights away. This case is about asking the court to uphold our rights and require Vizio to comply with the specific contractual terms in the GPL/LGPL that are central to those rights."

The Vizio case is not over. With the lawsuit sent back to Superior Court, SFC still needs to prevail in its breach of contract claim under the GPL. But the possibility of having the claim derailed by copyright law preemption has now been settled, thanks to Vizio's gambit to force the case into federal court.

"Normally, this sort of issue would be an issue for appeal after a state court trial," said Kuhn.

Vizio did not respond to a request for comment.

In conjunction with its Q1 2022 financial report, Vizio doesn't mention the SFC lawsuit in the "legal matters" section of its 10-Q filing with the US Securities & Exchange Commission. But the company's filing does acknowledge that usage of free and open-source software poses a potential business risk.

"Some of our consumer devices contain 'open source' software, and any failure to comply with the terms of one or more of these open source licenses could negatively affect our business," the company's latest 10-Q filing [PDF] stated.

Sandler via email said that the impact of the judge's decision is that companies making products that incorporate copyleft software will no longer be able to ignore source-code requests from customers.

"It is the purchasers of devices, the users downstream, that are aware of the violations and it is they who intend to make use of the source code as the GPL intends," said Sandler.

"Today, unless a copyright holder is attached to those requests (or someone who can make a lot of noise in the press), many companies simply ignore the requests they receive for source code. This frustrates the very thing that the GPL is designed to address." ®

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