In October 2021, the Software Freedom Conservancy (SFC) initiated a lawsuit against Vizio, an American TV manufacturer, for shipping products with copyleft licenses but refusing to provide the source code after multiple attempts at contact since 2018.

The lawsuit is historic in its approach, because it focuses on consumer rights conferred by copyleft licenses and SFC is filing as a third-party beneficiary.

Vizio has responded by filing a request to remove the case from the California State Court and move it into US federal court. The company contends that the computer programs and source code at issue in VIZIO’s SmartCast operating system “fall within the ‘subject matter of copyright.’”

Vizio’s legal representation cited several past cases involving open source licenses that were litigated within the scope of federal copyright law:

“Although plaintiff asserts claims against VIZIO under the guise of a breach of contract claim, that claim is based solely on rights that are qualitatively equivalent to those protected by federal copyright law. It is well established that exceeding the scope of a license by violating its ‘conditions’ gives rise to a claim for copyright infringement.”

The Software Freedom Conservancy published an update on the lawsuit, speculating on Vizio’s intent based on its initial response:

Vizio filed a request to “remove” the case from California State Court (into US federal court), which indicates Vizio’s belief that consumers have no third-party beneficiary rights under copyleft. In other words, Vizio’s answer to this complaint is not to comply with the copyleft licenses, but instead imply that Software Freedom Conservancy — and all other purchasers of the devices who might want to assert their right under GPL and LGPL to complete, corresponding source — have no right to even ask for that source code.

That’s right: Vizio’s filing implies that only copyright holders, and no one else, have a right to ask for source code under the GPL and LGPL.

SFC Executive Director Karen Sandler and Policy Fellow Bradley M. Kuhn, who co-penned the update, said they expected Vizio held this position since the company ignored their requests during discussions in the past years. They characterized Vizio’s recent filing as “a disturbing step further.”

“Vizio’s strategy is to deny consumers their rights under copyleft licenses, and we intend to fight back,” SFC representatives said.

If you want to follow the progress on the case, the filings are public. SFC has paid the Pacer fees and used the Recap browser plugin to make all the documents in the case freely available via the Recap project archives.