Have you ever bought an appliance or electrical appliance only to find out shortly after that the model is outdated? A US non-profit organization that supports free software (Software Freedom Conservancy) has taken legal action against a US-based television manufacturer (Vizio) for failing to provide consumers with the source code of the software used in the Vizio smart TV.
The Software Freedom Conservancy alleges that these smart TVs use open source software licensed under GPLv2 and LGPLv2.1. Both of these licenses 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 has not done this enough.
The Software Freedom Conservancy’s argument is that without the source code, consumers cannot modify or repair their televisions and therefore cannot keep useful but outdated software in the device. This is a new case, as it is the first to deal with the rights of consumers as third party beneficiaries under a copyleft license, as opposed to the case brought by a copyright holder. author 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 of their rights, for example, their right to repair.
The issue is likely to have significant ESG, consumer law and intellectual property implications, from a global and local South African perspective.
Connectivity and access to data is increasingly a serious concern to address and reduce the digital divide. The pandemic has led to increased demand for electronic devices such as laptops, smartphones, and home entertainment gadgets. This demand has put massive pressure on global supply chains, especially the supply of chips (semiconductors), which are needed to run electronics. If consumers can repair tech products independently of their vendors, it could extend device usage and reduce demand for vendors to source chips and deliver new inventory to retailers.
Additionally, allowing customers to repair their devices will result in extended use and equate to reduced e-waste (e-waste). E-waste is toxic to the environment and is becoming increasingly prevalent due to the increased demand for technology since the start of the pandemic.
These developments will promote greater corporate accountability for social and environmental considerations related to the delivery of technology products to consumers, which ultimately demonstrates good corporate governance.
Legislators around the world are making great strides in improving consumer-centric laws. In South Africa, the Consumer Protection Act (CPA) 2008 guarantees consumers the right to safe and good quality products. The CPA specifies that this right includes the receipt of goods which will be usable and durable for a reasonable period, taking into account their use and the circumstances of their supply.
Vizio’s failure to provide the Software Freedom Conservancy with source code for the software used in its smart TV may violate the CPA. Arguably, this failure results in the TV ceasing to be usable if the software becomes redundant soon after the TV is purchased, which violates the right to receive usable and durable goods. Interestingly, the CPA definition of “consumer” includes a user of goods or a recipient of services, whether or not that user or recipient was a party to the transaction. If the case were decided in a South African court, this definition would allow the Software Freedom Conservancy to argue that consumers have rights as third-party beneficiaries under a copyleft license.
Intellectual property law
The outcome of this case could open a Pandora’s box, allowing consumers to assert their rights on devices that use open source software. There would be many commercial and intellectual property issues for software developers and contracting parties to consider when developing and licensing proprietary software, which frequently incorporates open source software. In particular, software developers will need to carefully consider whether to make source code freely available to the public. This will naturally have commercial and financial implications, for example the price of a product incorporating open source software may increase. License agreements will need to be carefully crafted to ensure compliance with open source licenses, while ensuring that the copyright holder does not give up any of their rights to the proprietary software. These are just a few of the intellectual property issues that can arise.