Consumers May Have The Right To Access Open-Source Software In Devices

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Software developer. Photo by Christina Morillo from Pexels

A US body has launched a legal challenge to Vizio, a TV manufacturer, for failing to provide the source code for the software in its smart TV, which may have implications for other software developers.

Have you ever purchased an electrical appliance or device, only to discover shortly afterwards that the model is obsolete?  A US non-profit organization that supports free software (the Software Freedom Conservancy) has launched legal proceedings against a US-based television manufacturer (Vizio) for failing to provide consumers with the source code for the software used in the Vizio smart television.

The Software Freedom Conservancy alleges that these smart televisions use open-source software licensed under GPLv2 and LGPLv2.1 licences. These licences both contain “copyleft” provisions that require the licensee to distribute all modified versions of the licensed open-source software. According to the Software Freedom Conservancy, Vizio failed to do so sufficiently.

The Software Freedom Conservancy’s argument is that, without the source code, consumers cannot modify or repair their televisions and therefore cannot preserve useful but obsolete software in the device. This is a novel matter, as it is the first one to deal with the rights of consumers as third-party beneficiaries under a copyleft licence, as opposed to the matter being brought by a copyright holder as a copyright infringement claim.  The Software Freedom Conservancy argues that Vizio should have provided customers with the source code for its products, and that Vizio should have informed customers about their rights, e.g., their right of repair.

The matter is likely to have some significant ESG, consumer law and IP implications, from a global and local South African perspective.

ESG

Connectivity and access to data is increasingly a serious concern in addressing and closing the digital divide.  The pandemic has caused increased demand for electronic devices such as laptops, smartphones and home entertainment gadgets.  This demand has put massive pressure on global supply chains, particularly the supply of chips (semiconductors), which are needed for electronics to function.  If consumers can repair technology products independently of their suppliers, this could prolong the usage of devices and reduce the demand on suppliers to source chips and deliver new stock to retailers.

In addition, enabling customers to repair their devices will lead to prolonged usage and equate to reduced e-waste (electronic waste). E-waste is toxic to the environment and is becoming more prevalent due to the surge in demand for technology since the onset of the pandemic.

These developments will foster greater accountability by businesses to the social and environmental considerations of supplying technology products to consumers, which ultimately demonstrates good corporate governance.

Consumer law

Legislators across the globe are taking great strides in enhancing consumer-centric laws.  In South Africa, the Consumer Protection Act, 2008 (CPA) provides consumers with the right to safe, good-quality goods.  The CPA states that this right includes receiving goods that will be usable and durable for a reasonable period, having regard to their use and the circumstances of their supply.

Vizio’s failure to provide the Software Freedom Conservancy with the source code for the software used in its smart television could contravene the CPA.  Arguably, this failure results in the television ceasing to be usable if the software becomes redundant shortly after the television has been purchased, which contravenes the right to receive usable and durable goods. Interestingly, the CPA’s definition of “consumer” includes a user of goods or beneficiary of services, irrespective of whether that user or beneficiary was a party to the transaction.  If the matter was being decided in a South African court, this definition would enable the Software Freedom Conservancy to argue that consumers have rights as third party beneficiaries under a copyleft licence.

IP law

The outcome of this case may open a can of worms, allowing consumers to assert their rights over devices that use open-source software. There would be many commercial and IP issues for software developers and contracting parties to consider in developing and licensing proprietary software, which frequently incorporate open-source software.  In particular, software developers will need to carefully consider whether they must make some source code freely available to the public. This will naturally have commercial and financial implications, for example the pricing of a product incorporating open-source software may increase. Licence agreements will need to be carefully constructed to ensure compliance with open-source licences, whilst still ensuring that the copyright holder does not abandon any of its rights in and to the proprietary software.  These are only some of the IP issues that may arise.

  • Leanne Mostert, Partner and Cindy Leibowitz, Knowledge Lawyer at Webber Wentzel

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