Don’t Try to Fool a FULA: Ubiquiti’s Complaint is Dismissed

In 2018, a company called Ubiquiti Networks Inc. filed a 15-count lawsuit against a rival wireless networking company, Cambium Networks, Inc. The lawsuit claimed various wrongs due to Cambium selling hacking firmware that uses Ubiquiti’s devices as a launching point for Cambium’s own service. The claims were based on, among other things, alleged infringement of a “proprietary user interface,” “configuration code,” and “calibration code.”

Cambium’s competing software, called Elevate, and how it is used on Ubiquiti devices, is explained here. Whether using the software is “hacking” or mere compatibility is probably a matter of opinion.

Along with its product, Ubiquiti promulgated a “FULA” — Firmware User License Agreement — with various restrictions, including against using the firmware on any other device, or copying or modifying the firmware. But the user terms also stated that the product included open source software, including software under GPL.

Last week, an Illinois federal judge dismissed the complaint, saying “The disconnect between the broad claims articulated in the complaint, on the one hand, and Ubiquiti’s acknowledgement that the GPL and other open source software licenses limit its rights and therefore the scope of its claims, on the other, makes the scope of defendants’ allegedly unlawful conduct unintelligible.” The complaint included a creative list of claims including violation of RICO, the Computer Fraud and Abuse Act, the DMCA, and the Illinois Computer Crime Prevention Law — not to mention copyright infringement. The court dismissed the complaint as violating FRCP 8(a)(2), which requires a plaintiff to submit “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Because the complaint was dismissed without prejudice, it can be clarified and re-filed.

Vendors promulgating customer terms and conditions that apply to products as a whole should be careful that those terms do not contradict the terms of licenses like GPL that apply to components of the product. Contradictions in terms might not only be a violation of copyleft licenses — which do not allow contradictory restrictions — but may also make it difficult to enforce the overall terms for other components of the product.

Author: heatherjmeeker

Technology licensing lawyer, drummer

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