FOSS Patents: Google’s Android faces a serious Linux copyright issue

FOSS Patents: Google’s Android faces a serious Linux copyright issue (potentially bigger than its Java problem)

[I suppose that if Florian Mueller allowed comments on his blog, it would invite endless rivers of nonsense, so I will rely on my own little stream of nonsense for this.]

There is an interesting discussion going on concerning how Google adapted some header files used with Linux after removing the GNU Public License (GPL) notice and all descriptive text.  The question is whether or not that constitutes a copyright violation.

Informally, one would think so.   FLOSS proponents would be inclined to conclude that to be the case without any further consideration.  Florian quotes Linus Torvalds, who emphatically thinks so (as a general matter with respect to the particular headers it seems, not just with respect to what Google may have done). 

Florian goes on to extrapolate consequences of a determination that the GPL has been infringed and what compliance would require, such as open-sourcing of the Adobe Flash implementation in Android.  I don’t think that follows as the necessary cure, but I don’t want to pursue that analysis regardless.  There are other roads to be explored before that becomes a consideration.

Not being a lawyer, I think I can safely pontificate on this matter.  My understanding is that of a US Copyright law junkie.

The key take-away: Copyright law is such that the determination of infringement, and the nature and degree of the infringement is determined in court.  For example, the fair-use doctrine, as embodied in the law, is applied by courts, not the public, and the copyright law says what the court shall take into consideration but it doesn’t say how the judge will weigh those factors. 

I’d be surprised if Google would present a fair-use defense in this case, but fair use is not the only place that considerable judicial discretion is applicable to whatever facts of the matter are determined in court.

Consider these important factors:

  1. Not everything in a copyrighted work is subject to that copyright.  A copyright notice might be indiscriminate when placed on a work, but it still does not apply to non-copyrightable matter in that work and it definitely does not apply to [derivative] content to which the copyright of another applies.  (Google is charged with removing a notice, not adding one, but in some sense the copyrighted subject matter would still need to be determined.)
  2. Some expressions are inherently not copyrightable, whether or not expressed within a copyrighted work.  It looks like Google convinced itself that it could go down this road.  It is up to a court to decide if what is left in Google’s extractions is such material or not.  Keep in mind that it is generally considered to be the case that APIs are not themselves copyrighted (that is, using them is not a copyright infringement), and there’s a general understanding that one cannot copyright language.  I am oversimplifying.  The determination happens in court, if it goes that far.
  3. Utilitarian necessity may enter into the situation.  I have not heard any discussion of this in recent years but it is not clear that the doctrine has been pre-empted by revisions made to the US Copyright law starting in 1976.  The idea is that if there is really only one way to express something, that expression is not subject to copyright.  This is an interesting matter with respect to software, and especially with the use of Application Programming Interfaces (APIs) and the headers/declarations that are essential to making use of those APIs.  To the degree that there is something essential in order to express the use of an API, it may be argued that copyright does not apply.  (There, one must resort to trade secrets and contracts, if not patents, to achieve protection and none of that works for FLOSS.  Sorry.)

Of course, I have no idea how a court would come down on the situation with respect to Google’s Android software, nor do I have access to the facts of the matter.  I am a distant, Monday-morning bystander just like the rest of us. 

I would not have make the bet that Google seems to have made, even if there turns out to be no case for infringement.   There had to be a better way, and it would have been more trustworthy to have pursued it and then been absolutely clear on the provenance of material that others are expected to rely on in supporting and enriching the Android platform for mutual fun and profit.  The problem is that Google’s gamble, if there is one, has consequences for others.  Can you spell “evil?”  Of course you can.

PS: If you really enjoy making your head hurt, consider that the way header files in C/C++ programs are effectively used is by mechanically copying them into the programs which include them and then compiling that program as a single unit.  Although the programmer may never see this happening (and some software “pre-compiles” headers), this may tempt one to invoke notions of secondary infringement, etc.  Please don’t go down that road, no matter how much you might dream that any program that runs atop Linux shall be GPL licensed.  Enter that serpent nest of unintended consequences at your own peril.

[update 2011-03-18T20:43 I cleaned up a sentence with a repair that Florian suggested.]

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5 Responses to FOSS Patents: Google’s Android faces a serious Linux copyright issue

  1. orcmid says:

    Just to show that there is no sure thing here, we must remember the ruling in the Franklin case with regard to Apple ROMs and the APIs to them. But also see how Franklin cured what was ruled to be the infringement. One might consider whether the Borland loss of the suit by Lotus is important, also.

    I have always had stuck in my mind an observation by the judge who tried the case which made “palimony” a household word. Courts resolve disputes. Its that simple. It may not be a resolution that satisfies any of the parties, but it will be a resolution. It is this simple reality that has so many civil suits suddenly settle about the time jury selection commences.

  2. orcmid says:

    There’s further Slashdot discussion with regard to concepts of utilitarian necessity (and the expression of facts) and statements Richard Stallman has made on the subject with regard to whether using header files makes a derivative work under the GNU Public License.

    The discussion wanders into the weeds in the usual way, but it does reveal how much is not clear-cut about essentials extracted from header files.

    We don’t get to know how the specific case is resolved unless someone with standing (presumably not Oracle or any other big multinational in this instance) to claim a GPL violation before a court chooses to do so and prevails.

    While what Google has done seems unnecessarily risky to me, attempting to exploit that with anything legally-stronger than the FUD it invites strikes me as riskier still.

  3. Pingback: When is an API a Silo? fluidinfo Knows | Orcmid's Live HideOut

  4. Bystander says:

    While Florian may have included a quote from Linus Torvalds that he thought supported his position, a closer reading of what Linus was describing would show that Florian was taking the quote out of context. Linux was talking about use of Linux kernel headers to create binary kernel modules, which he has always maintained would be a derivative work of Linux and subject to the GPLv2. A more complete record of the thread where this discussion, which took place back in 2003, can be found here:

    Linux: The GPL And Binary Modules

    It should be noted that within that same thread Linux said this specifically about use of kernel headers in user-space applications, which would include C libraries such as glibc and Bionic:

    “There’s a clarification that user-space programs that use the standard
    system call interfaces aren’t considered derived works, but even that
    isn’t an “exception” – it’s just a statement of a border of what is
    clearly considered a “derived work”. User programs are _clearly_ not
    derived works of the kernel, and as such whatever the kernel license is
    just doesn’t matter.”

    And Linus’s viewpoint apparently hasn’t changed since then, as evidenced by recent statements he made concerning the specific allegations about Google’s use of Linux kernel headers.

    Android: Sued by Microsoft, not by Linux

    “It seems totally bogus. We’ve always made it very clear that the kernel system call interfaces do not in any way result in a derived work as per the GPL, and the kernel details are exported through the kernel headers to all the normal glibc interfaces too.

    “The kernel headers contain various definitions for the interfaces to user space, and we even actively try to make sure that the headers can be used by user space (and try to mark which of the headers are expected to be usable in such a way). Exactly because we know user space needs those details in order to interact with the kernel.

    “So I haven’t looked at exactly what Google does with the kernel headers, but I can’t see that they’d want to do anything fundamentally different from glibc in this respect,” Torvalds wrote.

    These past and present statements from Linus seem to completely refute Florian’s claims about user-space software such as Google’s Bionic library and third-party applications written for Android infringing the Linux copyright. History is also against Florian’s claims, since there are many examples of C libraries such as GNU glibc that employ different licenses than the GPLv2 used by the Linux kernel, and which freely use subsets of the Linux kernel headers. Neither the Linux kernel developers nor the FSF GNU developers have ever cited this as a problem.

  5. allan says:

    What strikes me in these discussions is the assumption that the linux kernel is under a standard / pure GPL v2 license. As best I can tell, IANAL, is that it is more like a GPL with Exception. None of the ‘legal’ analysis seems to take that in to account.

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