In our previous update regarding our copyleft
enforcement lawsuit against Vizio, we talked about how Vizio
“removed” the case to USA federal court (namely, the Central
District of California), and how we filed a motion to “remand”
the case back to state court. While this all seems like minor legal
wrangling early in a case, this very first skirmish in our case goes to the
very heart of the right for software repair for consumers. While it won’t
be a final decision in the case, this motion will be the first indication
whether the federal courts view the GPL as purely a copyright license, or
as a contract, or as both. That question has been central to legal debate
about the GPL for decades, and, thanks to our case, for the first time, a
federal Court will directly consider this question.

Our view (and the view of many attorneys whose opinions we trust) and which is supported by substantial case law, is that the
GPL functions as both a copyright license and a contract, and that third
parties who receive distribution of GPL’d (and LGPL’d) software are
third-party beneficiaries. We’ve done both copyright-based and
contract-based enforcement, and both have their advantages. Contract-based enforcement as a third-party has advantages that are central to the GPL’s policy goals. Consumers are the first to discover violations in the first place. Consumers are the most likely to utilize complete, corresponding source code (CCS) to enhance their use of the products they have purchased. Third-party, contractual based enforcement gives consumers legal authority when they ask companies for access to the source code that should be available to them. In other words, this approach gives consumers the
ability to ask the Court directly for the most
important thing that copyleft assures: a right to receive the
CCS and “the scripts used to control
compilation and installation of the executable”. Indeed, in our suit we have asked only for access to the source code, not for any money.

Our case
now is the first of its kind to adjudicate the third-party beneficiary
contractual theory. We are excited that a federal district Court is poised
to give its first answer to the central question to this endeavor, namely:
“Are the GPL and LGPL merely copyright licenses, and thus
preempted and only subject matter for the US federal courts, or can a
third-party bring a contract claim in state court?” If this
question intrigues you, we encourage you to read our motion
for remand, Vizio’s reply to that motion
and our rebuttal reply.

Most importantly, clear your calendar for this Friday 13 May 2022 at 10:30
US/Pacific! While Judge Staton may chose to rule on this motion strictly
based on those paper filings, the judge has scheduled a hearing for
that date and time. What’s more, anyone in the world can attend this hearing to
listen! Instructions for how to
attend are
found on Judge Staton’s
website⁰.

While, as FOSS activists, we’re very sad that the Judge has
chosen to use a proprietary videochat platform, we’re glad that
PSTN dial-in
is provided, and we’ll be dialing in and encourage you to do so as well.
Watch our microblog for live updates!

⁰ Please
take careful note of the warning on the Judge’s website: Recording,
copying, photographing and rebroadcasting of court proceedings is prohibited
by federal law. Remember: you can take as many notes as you like, and
even live blog/microblog what you hear, but take great care to follow the
directives on Judge Staton’s website.