Android: Sued by Microsoft, not by Linux

Microsoft launches new Android suit, Linus Torvalds' take on Linux kernel headers and Android

Microsoft's attempts to bring down Android via litigation rather than innovation continued apace today, as the software giant filed another patent lawsuit against an Android client, this time top US bookstore chain Barnes & Noble, which sells the Nook e-reader. Meanwhile, Linux founder Linus Torvalds has his own comments on the separate issue of Android potentially violating the Linux kernel's copyright, an issue raised last week.

[ Follow-up: Android: The new Microsoft mobile revenue source ]

According to Microsoft today, the Nook, which uses Android as its base operating system, violates five Microsoft-held patents on such innovative inventions like "Loading status in a hypermedia browser having a limited available display area" (Patent #6,339,780).

This lawsuit follows another similar lawsuit brought against device maker Motorola in October 2010, a case that is still in the early stages. Microsoft has also stated in public interviews that it has signed a patent licensing agreement with HTC, and will tell anyone who will listen that Android is not a free operating system, because it is obligated to Microsoft for patent fees.

The lawsuits against Motorola and Barnes & Noble are a clear message to anyone who thinks otherwise: pay up or get sued.

Today's lawsuit also names hardware manufacturers Foxconn and Inventec as patent infringers.

There is no reason to think that Microsoft is doing anything other than trying to scare hardware distributors and manufacturers into either (a) paying Microsoft's lawyers to make them go away or (b) avoiding Android altogether. The latter is more preferable to Microsoft, and as alternative operating systems for mobile devices continue to narrow (Nokia's new partnership with Microsoft will take Symbian out of the mix eventually), manufacturers may feel that using Windows Phone as a platform may be the least painful route.

To their credit, it looks like all three co-defendants in this particular case weren't buying what Microsoft was selling. According to Horacio Gutierrez, Microsoft Corporate Vice President and Deputy General Counsel for Intellectual Property & Licensing, "We have tried for over a year to reach licensing agreements with Barnes & Noble, Foxconn and Inventec. Their refusals to take licenses leave us no choice but to bring legal action to defend our innovations and fulfill our responsibility to our customers, partners, and shareholders to safeguard the billions of dollars we invest each year to bring great software products and services to market."

This will be the way it will go for awhile, since Microsoft clearly has no intention of suing the actual maker of Android, Google, for the same patent violations. Google has far too much money and too many patents of its own for Microsoft to get into a direct legal confrontation them. They will instead use a cold war-like strategy, picking off the little guys one by one, until Google gets out of the platform business.

How these patent cold war skirmishes will shake out, of course, is anyone's guess. Unfortunately, we may see a quiet settlement some months down the road when no one is looking, and Microsoft will get its Danegeld after all. It won't stay quiet for long; Microsoft already touts that HTC deal as vindication that their right to defend these patents remains indisputable.

This new lawsuit comes just days after an unsolicited analysis from IP attorney Edward Naughton warned that Android might be in violation of the GPL by using Linux kernel header files to create a new BSD-licensed library that userspace applications can interface with the Android kernel.

According to Naughton's analysis, Google decided for technical reasons to avoid using the glibc library of Linux kernel headers (which most distros use for the interface between the kernel and applications) and instead created their own Bionic library that comes with what Google believes is a less broken set of kernel headers for Android applications to use.

The headers within Bionic, according to Google, are thoroughly cleaned of any comments or content that might be considered copyrightable works. The only thing that is left are standards-based constants, macros, and type definitions that many in the software development/legal arena consider facts, because they're not doing anything, they're just telling applications "here's how to interface with the kernel."

In "pure" Linux distros, glibc is used for this interface job and even though it is licensed under the Lesser GPL, application developers can use it to their hearts' content without fear of having their own works fall under the LGPL because the Linux kernel developers have said (many times) that they don't regard glibc as a derived work, so deep interfacing with it will not mean software using it will in turn have to be licensed under the kernel's GPL.

Naughton raised serious concerns in his report that what Google has done with Bionic (essentially creating a library analogous to glibc for Android) and then licensing Bionic under the Apache license violates the kernel's GPL. If that's the case, he argued, then Bionic could be considered a derived work under the GPL and therefore any application that touched Bionic would also be subject to the GPL.

But when I put the question to Linus Torvalds last week, he wasn't nearly as concerned. Torvalds responded to my inquiry just this afternoon and had this to say about the so-called problem:

"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.

Torvalds seems to be at best bemused about the issue and perhaps a tad irritated.

"Of course, we do have our own 'internal' headers too, and we have stuff that is meant to be relevant only for the kernel. But there would be no point for Google to even use those, since they are useless outside of the kernel, so I don't see what the whole brouhaha would be all about. Except if it's somebody politically motivated (or motivated by some need of attention)," he continued.

And if it's indeed attention that these parties want, Torvalds has a suggestion for that, as well.

"If it's some desperate cry for attention by somebody, I just wish those people would release their own sex tapes or something, rather than drag the Linux kernel into their sordid world," Torvalds concluded.

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