[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:
- 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.)
- 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.
- 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.]