The intriguing implications of SFC v Vizio

A couple of weeks ago, the Software Freedom Conservancy (SFC, an OSI Affiliate organization) filed suit against television maker Vizio, alleging that Vizio took advantage of open source software without playing by open source rules—a scenario akin to joining in a friendly, come-one, come-all community game of soccer then taking the ball and running away with it.

The suit alleges that Vizio incorporated software covered by two General Public License agreements into its SmartCast platform for streaming content from services like Apple's AirPlay and Google's Chromecast to its TVs, but Vizio didn't make its source code publicly available. After several years of diplomacy and numerous unsuccessful appeals on the part of SFC to Vizio to provide the source code out of a duty to fair play, the SFC is now asking a California state court to force Vizio to share the source code.

I encourage you to read the full copy of the complaint, because it’s a great treatise on “why it matters.” In Section D, SFC argues that defending software freedom benefits the public and offers three practical examples. First, developers could add features that protect the user’s privacy and personal data. (Vizio previously paid a $17 million settlement in a 2017 case for collecting consumer data with its Smart TVs without consumer consent.) Second, developers could also improve SmartCast accessibility to accommodate those who are deaf, hard of hearing, blind or disabled. And third, developers could “maintain and update the operating system should Vizio or its successor ever decide to abandon it or go out of business. In these ways, purchasers of Vizio smart TVs can be confident that their devices would not suffer from software-induced obsolescence, planned or otherwise.

I find many facets of this lawsuit fascinating and constructive.

First, it underscores how we need to guard against companies who don’t put people first. This has become a front-and-center issue during the pandemic as we’ve seen how technology plays such a critical role in our lives, especially internet, mobile and television technology. Consider, for example, how we now rely on telemedicine, telework and telelearning. As we move towards a more “tele-everything” world, we must protect the rights of the user.

Another aspect of the lawsuit I find intriguing is the intersection of issues like planned obsolescence, right-to-repair, and electronic waste with open source software licenses. It’s one thing if a company makes bad choices for the environment by developing their own software. It’s a totally different thing for a company to take millions of lines of code contributed by thousands of developers employed by others and abuse the environment. That’s unethical.

I’m glad that this lawsuit is forcing further discussion in the open source community about who the “user” is. Traditionally, the user has been identified as a developer, but the sheer quantity of Linux embedded in the devices of consumers today begs the question: What rights should Android users have since a lot of that code is copyleft licensed? Do farmers have the right to fix their tractors? Or, do I have to throw away a TV because the software won’t be upgraded by the vendor?

Finally, this lawsuit and the discussions it provokes provides the open source community an opportunity to further clarify the rights of software users. Many have thought that only copyright holders could sue a vendor for violating an open source license.

Despite the initial challenges (nobody thought this was going to be easy), this lawsuit has the potential to empower many consumers, radically changing the landscape of consumer technology.

To promote and protect open source software and communities...

For over 20 years the Open Source Initiative (OSI) has worked to raise awareness and adoption of open source software, and build bridges between open source communities of practice. As a global non-profit, the OSI champions software freedom in society through education, collaboration, and infrastructure, stewarding the Open Source Definition (OSD), and preventing abuse of the ideals and ethos inherent to the open source movement.

Open source software is made by many people and distributed under an OSD-compliant license which grants all the rights to use, study, change, and share the software in modified and unmodified form. Software freedom is essential to enabling community development of open source software.