US Customs Case to be Filed Based on GPL Violation

A Linux kernel developer, Matthew Garrett, posted a blog entry threatening a US Customs case based on GPL violations.  His blog describes failed attempts to get the source code for JooJoo Android tablets.  According to his blog, the maker of the tablet, Fusion Garage, has not responded to requests for source code as required by GPL.  The running dispute is also described here

This method of enforcement is sometimes called a “337” action, because it is authorized by Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337).  If the US ITC (US International Trade Commission) finds Section 337 has been violated, it may issue an order directing that infringing goods be excluded from import into the United States.  The order is executed by Customs and Border Protection, which may seize the goods at the border.  TCBP’s border enforcement of copyrights is essentially limited to copyrights that have been registered with the US Library of Congress and also recorded with CBP.

 A circular published by the US government says, “Members of the public may inform CBP of potential intellectual property rights violations via CBP’s on-line trade violation reporting mechanism called e-Allegations. The public may access e-Allegations and additional relevant information at http://www.cbp.gov/xp/cgov/trade/trade_programs/e_allegations/. CBP also maintains an on-line recordation system, Intellectual Property Rights e-Recordation, which allows rights owners to electronically record their trademarks and copyrights with CBP, and facilitates IPR seizures by making IPR recordation information readily available to CBP personnel. CBP’s on-line recordation system is available at https://apps.cbp.gov/e-recordations/.”

This means that while only the owner of the copyright can bring a claim, anyone can report an infringing import.  337 actions have long been used as a tactic to enforce intellectual property rights.  They are generally faster and cheaper than federal litigation, and for this reason are particularly popular with patent plaintiffs.   However, the remedies available are different from those in federal court — for example, a quick emergency exclusion order is more likely, but damages are not available.  In addition,  in a patent action, the complainant must show that the patent is being used in an “existing domestic industry.” 19 U.S.C.  1337(a)(1)(B), (a)(2-3).  This may exclude actions by non-practicing entities (NPEs) or patent “trolls” — but the law is in flux