Open source software has made its way into nearly every industry, but a recent open source security and risk analysis shows widespread license compliance risks, with 75% of the audited applications including GPL license conflicts. Although most violations are unintentional, there are some cases where companies do not comply with the license in order to block competitors from developing similar software.
GPL enforcement doesn’t often lead to litigation. When it does, most other avenues of resolving the complaint have already been exhausted. A lawsuit in the air transport industry is currently bringing more attention to the gravity of not complying with open source software licensing requirements.
CoKinetic Systems, a developer and manufacturer of in-flight entertainment (IFE) software, has filed a case against Panasonic Avionics that includes allegations of a fairly egregious breach of the GPL. The complaint alleges that Panasonic Avionics has monopolized the Panasonic IFE Software and Media Services Market by deliberately refusing to distribute the source code for its open-source Linux-based operating system:
More specifically, Panasonic has built the Linux-Based Panasonic Core Software using the open-source Linux kernel, which is clearly governed by the GPL, together with Panasonic’s own modified Linux modules, which are likewise governed by the GPL.
Indeed, Panasonic has itself affirmatively identified its own modified modules as being subject to the GPL, because the original Linux modules were specifically designed to generate warning messages if other code is linked with or otherwise combined with the Linux modules that are not licensed under the GPL. To suppress these warnings, Panasonic willfully acted to insert code into its own modules to indicate that they were licensed under the GPL.
Panasonic has incorporated a massive amount of open source modules, programs, and libraries into the Linux-Based Panasonic Core Software, without distributing notices or source code to the Linux-Based Panasonic Core Software, or even to any part of it…By deliberately refusing to distribute the source code to the Linux-Based Panasonic Core Software in accordance with its GPL obligations, Panasonic intentionally deprives competitors in the market from having the ability to develop software that can access the basic features and capabilities of Panasonic IFE Hardware.
CoKinetic Systems contends that Panasonic’s refusal to distribute its source code voids its GPL license and “potentially exposes Panasonic to billions of dollars in statutory damages for hundreds of thousands of hardware installations that willfully infringe copyrights belonging to hundreds or even thousands of software developers that freely contributed source code to Linux.”
Furthermore, the complaint details how competitors have to rely on Panasonic’s APIs in order to offer software services to airlines using Panasonic’s IFE hardware, because they do not have access to the source code for the Linux-based core software. CoKinetic claims that Panasonic also deliberately blocks competitor products by its selective distribution of its APIs, resulting in stifled industry innovation and monopoly control over the Panasonic IFE Software and Media Services Market.
Perhaps the worst and most grave allegation in the complaint is that, in addition to locking up the source code and doling out access to the APIs, Panasonic also maliciously sabotaged its own APIs in order to give the appearance that it is the only reliable software service provider for its hardware, which CoKinetic claims is inferior and sold at monopolistic prices.
Panasonic also is able to use its control over the Linux-Based Panasonic Core Software in order to make ongoing, undisclosed, and often malicious modifications to its source code, deliberately “breaking” Panasonic’s own APIs in order to purposely and maliciously sabotage the performance of third-party software products that Panasonic deems a competitive threat — particularly CoKinetic software.
In the introduction to the case, CoKinetic cites a litany of anti-competitive conduct the company has engaged in over the past decade before detailing the current allegations. The case is not purely an open source license dispute, as the plaintiff also alleges that Panasonic abused regulatory processes, engaged in acts of corporate espionage, defamed CoKinetic, paid commercial bribes, and employed unlawful means to monopolize the Panasonic IFE Software and Media Services Market.
CoKinetic is seeking compensatory damages for Panasonic’s GPL ongoing GPL breaches. The specific amount would be determined at the trial but the company believes it to be in excess of $100 million. The company also wants the court to compel Panasonic to publicly disclose and distribute the source code.
This isn’t a case where distributing the source code is just a small sticking point or just a matter of principle. It has the potential to open up the IFE industry for faster progress and greater innovation. Many reading this article have undoubtedly used Panasonic’s IFE products when flying with the company’s customers, which include Emirates Airlines, Delta Air Lines, Virgin America, and United Airlines. With the source code available, airline customers could remove Panasonic’s software from their IFE hardware and replace it with their own software solutions.
The complaint, which was filed in the Southern District of New York in March, demands a jury trial. An initial pre-trial conference was held in May, but the case has been slow moving. The Court gave a deadline for the Defendant to file its motion to dismiss, but deadlines have since been extended. The Court also strongly recommended that the two parties retain a private mediator but it’s not clear how outside mediation could solve such a far-reaching matter that impacts so many vendors. Additional documents are due over the next few months, so it will be some time before there are updates on the progress of the case.