Software Licensing and Intellectual Property Law Blog

Open Source Audit Tool Available

OSS Discovery (downloadable here) is a software application that can be used to locate Open Source Software. OSS Discovery is itself subject to the Affero GPL.

Our Firm has participated in a number of open source audits associated with mergers and acquisitions, we know first hand that the audit process can be involved, time consuming and inaccurate. This tool could prove invaluable.  Because OSS is typically downloaded and not subject to a traditional purchasing process, there is usually very little paper trail associated with its use and implementation.  Corporations typically underestimate their use of OSS.

When auditing use of OSS, Legal departments are usually forced to rely on the memories of individual developers and product managers to determine the scope of OSS use in individual software applications.  Such a process is less than perfect and usually incredibly time consuming.

Hopefully OSS Discovery will make a tedious process easier.

BusyBox Developers and Xterasys Corporation Settle GPL Lawsuit

On December 17, the  Software Freedom Law Center ("SFLC")  announced it has settled its GPL enforcement lawsuit filed on behalf of BusyBox developers Erik Andersen and Rob Landley against Xterasys Corporation. (Blogged about here)

Xterasys' ability to distribute BusyBox will apparently be reinstated once the SFLC verifies that Xterasys is making its source code available in accordance with the GPL.   Xterasys has also appointed an Open Source Compliance Office to monitor GPL compliance and notify previous recipients of BusyBox of their rights to source code. The settlement also included an undisclosed financial payment by Xterasys to the BusyBox developers.

Additional GPL lawsuits are sure to follow.  If you are unsure if your software products contain code subject to the GPL or if you are unsure if you are in compliance with the GPL, auditing your products to determine your level of exposure is advisable.  Developing a framework for incorporating open source software into your products is key to ensuring you have the ability to fully exploit your intellectual property on your own terms.

Activision Settles Trademark/Copyright Lawsuit With Gameloft

On December 12 Activision withdrew its Motion For Preliminary Injunction and settled its lawsuit against Gameloft seeking to stop Gameloft from allegedly infringing Activision's copyrights and trademarks. In its complaint Activision alleged that Gameloft's GUITAR LEGENDS game for wireless phones infringes Activision's GUITAR HERO trademark and copyrights.

The settlement is mostly likely  a wise move on Activision's part.  While the suit raises a number of issues  (including copyright infringement and apparently alleges that GUITAR LEGENDS infringes Activision's own GUITAR LEGENDS OF ROCK mark - which may have convinced Gameloft to settle), GUITAR HERO itself is not the strongest mark. The term "Guitar" is a descriptive term in the field of a beat matching video game and it would be difficult for any one company to claim exclusive rights to the term in connection with those  goods. In fact, Activision has disclaimed exclusive rights to the term GUITAR apart from its GUITAR HERO mark. While a disclaimer certainly doesn't remove the disclaimed matter from the mark, it makes Activision's enforcement efforts more difficult. In addition, the USPTO has allowed for registration a number of other "Guitar" marks used in connection with video games - including Gameloft's GUITAR LEGENDS mark.

Gameloft recently filed express abandonments of its GUITAR LEGENDS and GUITAR LEGENDS  GET ON STAGE trademark applications (which had been allowed by the USPTO) - most likely as a result of the settlement. Interestingly, however, Gameloft still appears to  be actively  promoting and using its GUITAR LEGENDS GET ON STAGE mark on its website.

Copies of the Motion, Declaration and Withdrawal are below:

Download memo_of_pas_for_pi_2_3.pdf

Download finegan_decl_for_pi_2.pdf

Download show_case_doc.pdf

Fourth GPL Infringement Lawsuit Filed On Behalf of BusyBox

On December 7, the Software Freedom Law Center ("SFLC") announced that it has filed a lawsuit on behalf of BusyBox developers Erik Andersen and Rob Landley alleging violations of the GPLv2 by Verizon Communications, Inc.

According the the SFLC, Verizon apparently distributes to its costumers routers that contain BusyBox, but fails to also make BusyBox source code available in violation of the GPL.

The SFLC's press release is located here.

CNET coverage is  here; and a copy of the complaint is located here.

Microsoft to Buy SAP - Again?

Reuters is reporting (here) that shares in SAP are up on speculation that Microsoft may acquire SAP.  The two companies briefly entertained a merger in 2003 but Microsoft ended the discussion due to the complexity of the transaction (original coverage here).

If the merger was  too complicated in 2003, it wouldn't appear to be any less complicated today - especially with SAP's planned acquisition of Business Objects (blogged about here).