Read the Transcript: Key Legal Issues Argued in Vizio's Summary Judgment Motion

[Software Freedom Conservancy]

  Read the Transcript: Key Legal Issues Argued in Vizio's Summary Judgment
                                  Motion

URL: https://sfconservancy.org/news/2023/oct/12/transcript-msj-hearing/

Social media:
  https://social.sfconservancy.org/notice/AahgDOuPxajz4HCWZM
  https://x.com/conservancy/status/1712549752209027477

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 [0] (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 [1]. We also think you'll
enjoy reading this blog post from our Director of Compliance, Denver
Gingerich, talking about watching the hearing [2].

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 [3]. 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.

[0] https://sfconservancy.org/news/2022/may/16/vizio-remand-win/
[1] https://sfconservancy.org/docs/Transcript_Full_Vizios_MSJ_HearingDeptC-33.231005.pdf
[2] https://sfconservancy.org/blog/2023/oct/12/how-i-watched-motion-summary-judgment-hearing/
[3] https://sfconservancy.org/sustainer/