October 12, 2023
SFC lawyers posing outside the courthouse – CC BY-SA 4.0
Last Thursday, Software Freedom Conservancy took the next step in our ongoing litigation to liberate the complete, corresponding source code for Vizio televisions. Our lawyers argued on our behalf the core legal issues at the center of our case against VIzio. The motion and responses were filed in the weeks prior to the hearing and in-person oral arguments took place before Judge Sandy N. Leal of the Superior Court of California, County of Orange on Thursday, October 5, 2023.
The motion, and consequently the hearing, focuses on two of the most critical issues of the case: (a) whether recipients of GPL’d software can enforce their rights to the corresponding source code themselves (under a legal theory known as “third-party beneficiary”) and (b) whether or not this contractual right is preempted by copyright law. The preemption issue was previously decided by a federal judge in SFC’s favor (a decision which “remanded” this case back to Judge Leal). However, the federal ruling is not necessarily binding on the state court; Vizio is within their legal rights to represent it to Judge Leal.
In the courtroom, SFC was represented by leading California lawyers Naomi Jane Gray and Don Thompson. As immediate Past President of the Copyright Society, Naomi has spearheaded copyright law awareness and education. Naomi brings a wealth of knowledge to support our case and its focus on benefits to third parties, which, we argued, are not preempted by copyright law — but rather these contractual rights work in concert with the copyright rights to provide users with software freedom under the GPL Agreements. Naomi’s colleague, Don Thompson, brings significant litigation experience is invaluable for making our case. They both excel in breaking down complicated concepts into simple explanations, which was extremely helpful in the hearing.
Together, Naomi and Don were a powerhouse representing us on these important issues before Judge Leal. As Don stated in the courtroom:
Vizio does not dispute that the recipients of licensed
software have a right to source code under the GPL’s, and
yet Vizio argues that as a matter of law those recipients
of licensed software may not enforce the right that we
indisputably enjoy, because somehow it would be
inconsistent with the objectives of the contract and the
reasonable expectations of the contracting parties. Nothing could be further from the truth,
Naomi gave an excellent primer on the difference between valid copyright and contract claims and the reserved rights under copyright law. Here are two excerpts from her arguments:
Vizio now argues that it can breach this
contract with impunity, because any claim for breach
would be preempted by copyright law, and because the
parties who are harmed by the breach lack standing to
enforce their rights. That is not and cannot be the law.
Vizio is taking the position that enforcement by copyright holders ought to be sufficient, but copyright is a different right. Copyright holders are different plaintiffs. We are not asserting copyright in this case. What we are asserting is our right to source code, which exists under the terms of the contract.
We were thrilled to hear in real-time our lawyers argue so passionately for the rights of consumers and users everywhere. They drove home the importance of having access to see and modify the source code we rely on, and that consumers are the ones who are truly hurt when company’s don’t comply with the terms of the GPL. As Naomi put it using the legal terms at issue,
In this case the party that is harmed is the party demanding the source code, denied the right to source code. And we need the source code to modify the software. That is our irreparable harm.
We encourage those of you that care about the rights granted under the GPL Agreements to read the full transcript. We also think you’ll enjoy reading this blog post from our Director of Compliance, Denver Gingerich, talking about watching the hearing.
We expect a decision on this motion in the coming days, and will share news of the decision with the FOSS community quickly thereafter.
Public policy litigation like this is expensive. We urge you to support our efforts in this case by becoming an SFC Sustainer urgently. We rely upon donations like yours to fund the important work of defending the GPL Agreements, and all the other important work that our organization does to advance software freedom and rights.