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WARNING: This document is made public for archival and historical purposes only. Not all of the information is current, and accuracy cannot be guaranteed.

Chapter 23
Bracken: a Minor Violation in a GNU/Linux Distribution

23.1 The Facts

Bracken produces a GNU/Linux operating system product that is sold primarily to OEM vendors to be placed in appliance devices used for a single purpose, such as an Internet-browsing-only device. The product is almost 100% Free Software, mostly licensed under the GPL and related Free Software licenses.

FSF found out about this violation through a report first posted on a Slashdot¹ comment, and then it was brought to our attention again by another Free Software copyright holder who had discovered the same violation.

Bracken’s GNU/Linux product is delivered directly from their Web site. This allowed FSF engineers to directly download and confirm the violation quickly. Two primary problems were discovered with the online distribution:

• No source code nor offer for source code was provided for a number of components for the distributed GNU/Linux system; only binaries were available
• An End User License Agreement (“EULA”) was included that contradicted the permissions granted by the GPL

FSF contacted Bracken and gave them the details of the violation. Bracken immediately ceased distribution of the product temporarily and set forth a plan to bring themselves back into compliance. This plan included the following steps:

• Bracken attorneys would rewrite the EULA to comply with the GPL and would vet the new EULA through FSF before use
• Bracken engineers would provide source side-by-side with the binaries for the GNU/Linux distribution on the site (and on CD’s, if ever they distributed that way)
• Bracken attorneys would run an internal seminar for its engineers regarding proper GPL compliance to help ensure that such oversights regarding source releases would not occur in the future
• Bracken would resume distribution of the product only after FSF formally restored Bracken’s distribution rights

This case was completed in about a month. FSF approved the new EULA text. The key portion in the EULA relating to the GPL read as follows:

FSF restored Bracken’s distribution rights shortly after the work was completed as described.

23.2 Lessons Learned

This case was probably the most quickly and easily resolved of all GPL violations in the history of FSF’s Compliance Lab. The ease with which the problem was resolved shows a number of cultural factors that play a role in GPL compliance.

1.

Companies that understand Free Software culture better have an easier time with compliance. Bracken’s products were designed and built around the GNU/Linux system and Free Software components. Their engineers were deeply familiar with the Free Software ecosystem, and their lawyers had seen and reviewed the GPL before. The violation was completely an honest mistake. Since the culture inside the company had already adapted to the cooperative style of resolution in the Free Software world, there was very little work for either party to bring the product into compliance.

2.

When people in key positions understand the Free Software nature of their software products, compliance concerns are as mundane as minor software bugs. Even the most functional system or structure has its problems, and successful business often depends on agile response to the problems that do come up; avoiding problems altogether is a pipe dream. Minor GPL violations can and do happen even with well-informed redistributors. However, resolution is reached quickly when the company — and in particular, the lawyers, managers, and engineers working on the Free Software product lines — have adapted to Free Software culture that the lower-level engineer already understood

3.

Legally, distribution must stop when a violation is identified. In our opinion, Bracken went above and beyond the call of duty by ceasing distribution while the violation was being resolved. Under GPL §4, the redistributor loses the right to distribute the software, and thus they are in ongoing violation of copyright law if they distribute before rights are restored. It is FSF’s policy to temporarily allow distribution while compliance negotiations are ongoing and only in the most extreme cases (where the other party appears to be negotiating in bad faith) does FSF even threaten an injunction on copyright grounds. However, Bracken — as a good Free Software citizen — chose to be on the safe side and do the legally correct thing while the violation case was pending. From start to finish, it took less than a month to resolve. This lapse in distribution did not, to FSF’s knowledge, impact Bracken’s business in any way.

4.

EULAs are a common area for GPL problems. Often, EULAs are drafted from boilerplate text that a company uses for all its products. Even the most diligent attorneys forget or simply do not know that a product contains software licensed under the GPL and other Free Software licenses. Drafting a EULA that accounts for such licenses is straightforward; the text quoted above works just fine. The EULA must be designed so that it does not trump rights and permissions already granted by the GPL. The EULA must clearly state that if there is a conflict between it and the GPL, with regard to GPL’d code, the GPL is the overriding license.

5.

Compliance Officers are rarely necessary when companies are educated about GPL compliance. As we saw in the Bortez case, FSF asks that a formal “GPL Compliance Officer” be appointed inside a previously violating organization to shepherd the organization to a cooperative approach to GPL compliance. However, when FSF sees that an organization already has such an approach, there is no need to request that such an officer be appointed.