Android foes still beating GPL non-compliance drum

Strong beat, but you still can't dance to it.

Even as Google announced their acquisition plans for Motorola Mobility today, vague legal accusations were re-hashed by IP attorney Edward J. Naughton that imply that all Android manufacturers are at risk of losing their rights to distribute Android because of they did not comply with the terms of the GNU General Public License (GPL). But the head of the Software Freedom Conservancy states there are still, despite the arm waving, no legitimate claims made on Android GPL violation.

Actually, Naughton doesn't just imply problems for Android vendors, he just comes right out and says it: Android manufacturers have already lost their licenses to distribute GPLed code inside Android.

[Are Motorola's patents enough to protect Android?]

"Not long ago, open source advocates sued more than a dozen major consumer electronics manufacturers, claiming that the manufacturers had lost the right to use GPL'd software in their devices. It looks like the same could be said of Android: virtually every one is unlicensed," Naughton wrote in his blog.

One of Naughton's biggest cheerleaders, FOSSPatent author Florian Mueller, is also explicit in his own amplification of Naughton's theories:

Most Android vendors lost their Linux distribution rights, could face shakedown or shutdown...

That Tweet links to Mueller's blog entry, which pretty much sums up Naughton's two blog entries (part 1 and part 2) on the topic of GPL non-compliance in Android. According to these gentlemen, Android vendors have already lost their distribution rights--it's a done deal.

Well, let's hold on there a bit.

Naughton's blog entries focus on one key aspect of the GPL, version 2; Section 4, which, as Naughton correctly points out, is one of the toothier parts of the license:

"4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance."

In other words, break the license terms, and poof! there goes your license to distribute. Pretty straightforward.

But Naughton doesn't leave it there. He lasers his focus in on the events surrounding the BusyBox GPL violation lawsuits that were undertaken on behalf of the BusyBox developers by the Software Freedom Conservancy (SFC) and the Software Freedom Law Center (SFLC). Very specifically, he zeroes in on the Best Buy case as the root cause for the wave of doom and destruction that's surely about to drop on the Android community.

Best Buy, as many know, was pretty much one of the last hold outs in the last round of BusyBox lawsuits, and even though the case was eventually settled, Naughton is particularly interested in a motion for preliminary injunction filed against defendants Best Buy and Phoebe Micro, Inc. that apparently argues that even though the defendants had made the source code available, the SFC was still maintaining they were still out of compliance with the GPL because they hadn't addressed the BusyBox plaintiff's demands for damages.

Following Naughton's logic, then, Android vendors who have not released the GPLed code inside Android are going to be in violation of the GPL even if they cough up the code now. And he uses the SFC's own arguments to come to this conclusion, giving them even more apparent validity.

It should be noted, as Naughton did point out, these motions were never decided upon because Phoebe and Best Buy eventually settled. But that doesn't stop Naughton from picking apart the SFC's own legal tactics and transposing them to the Android ecosystem.

Non-compliance is running rampant in the Android development world, Naughton argues, and just coming up with the source code for any GPLed code in Android will simply not cut it. He even argues that complying with the GPL is very hard, since even Richard Stallman just recently discovered that emacs has been in violation of the GPL since 2009.

And hey, if Stallman can't comply with the GPL, then what mere mortal can? At least, that seems to be Naughton's implication.

Naughton is taking the position that if the SFC's arguments in the Best Buy case were applied to the Android ecosystem, "every device for which a manufacturer has not made all of the GPL source code available is unlicensed and subject to an injunction."

Google itself is also subject to GPL violation, Naughton argues, because while it can't be held accountable for vendors' policies on redistributing GPLed code, Google (in Naughton's view) may be guilty of re-licensing GPL code as Apache Software License 2.0 code. Naughton has argued this point before about Linux kernel header files that were allegedly used to create the BSD-licensed Bionic library that userspace applications can interface with the Android kernel.

Those points were specifically addressed by Linux kernel founder Linus Torvalds, who highlighted that Linux kernel header files "do not result in a derived work as part of the GPL." (Torvalds also had some choice words for Naughton and Mueller in his reply, but I'll leave that alone today.)

That doesn't stop Naughton from trying again, albeit with different software. This time, he specifically cites Bootchartd as another example of Google taking GPL code and re-licensing it under the ASL. He also mentions "repurposing of files from the Cygwin and Zenburn projects and the inclusion of a code 'modeled after' a script that appears to be from a documentation page from Linux man-pages project at" [Note: the links to the Cygwin and Zenburn projects in Naughton's blog appear to be broken, as they are either going to the Android git site or invalid, respectively.]

Without specifics on what Naughton is actually pointing at, there a strong possibility there is no violation in these instances. As Naughton points out, the developers of these bits of code could have given permission to re-license the code. Or perhaps they are still licensed under the GPL and are part of the Android code that Google has made available to all despite their continuing decision to withhold the ASL parts of Android.

Naughton, in some respects, is being much more careful in his arguments if you bother to dig past the sensational lead parts of his articles. There's a lot of "maybes" and "ifs" and "could bes" in his arguments. Given his past confusion over the Bionic libraries and the fact that the Android components are licensed under multiple licenses, he seems to have learned his lesson about broad, overreaching statements.

All, perhaps, save one.

To date, as much as Naughton and Mueller insinuate and hand-wave, there have been no enforceable complaints made about any part of Android being in violation of the GPL. Nor have there been any legal complaints about Android vendors violating the GPL. Bradley Kuhn, who is the executive director of the SFC, had this to say about Naughton's previous try with this argument in May:

"Of course, as a software freedom advocate, I'm deeply dismayed that Google, Motorola and others haven't seen fit to share a lot of the Android code in a meaningful way with the community; failure to share software is an affront to what the software freedom movement seeks to accomplish. However, every reliable report that I've seen indicates that there are no GPL nor LGPL violations present. Of course, if someone has evidence to the contrary, they should send it to those of us who do GPL enforcement. Meanwhile, despite Naughton's public claims that there are GPL and LGPL violations occurring, I've received no contact from him. Don't you think if he was really worried about getting a GPL or LGPL violation resolved, he'd contact the guy in the world most known for doing GPL enforcement and see if I could help?"

Though I have disagreed with him in the past, Kuhn is a fair-minded person and I have no doubt that he would hold Google or any other Android vendor accountable is there was indeed a legitimate claim of a GPL or LGPL violation. He is not anti-Google, nor pro-Google. He wants what's best for free software and software users. In fact, in that same May article, he posted a link to Matthew Garrett's findings about actual apparent GPL violations among Android tablet manufacturers that are troubling him, something that Naughton has finally picked up on, at least in passing.

But again, this all goes back to whether there are actual legal claims. Despite Garrett's research (which is great, by the way), nobody is filing formal complaints against these manufacturers or Google.

I asked Kuhn about this new round of comments, and he responded today that what he originally said back in May still applies.

"Specifically, I see no one actually reporting a credible GPL violation in any of these blog posts. I also note that these two bloggers have not bothered to contact me at Conservancy to ask for help (or offer their help) in doing enforcement against any violations, despite my public call to Naughton to do so in my [May] blog post," Kuhn replied in an e-mail this morning.

The trick with Naughton's arguments is while all of them have a ring of truth, the fact it that they all depend on one simple thing to actually start being completely true: someone has to make a legitimate claim of a GPL violation. That is the one fundamental argument that Naughton fails to mention. He implies that the current policies of Android vendors and Google are enough to put Android at great risk, but in truth, no such claims have been made to date. All the legal issues with Android center around patent and copyright violations, not license compliance.

Mueller, in his recap of Naughton's statements, tries to skirt around this, by citing the aforementioned biting remarks from Torvalds the last time Naughton went down this road:

"Back then he raised interesting points, and contrary to popular misbelief, his concerns weren't dispelled by the likes of Linus Torvalds, whose emotional outburst indicated that Naughton had touched on a sensitive area for the Linux community. None of those who contradicted Naughton stood up and said that there was no reason for concern. Ultimately, the interpretation of the GPL and of copyright law at large is in the hands of the courts, not of luminaries like Torvalds. But that's the history, and the new story is--while also related to Android and the GPL--a different one."

But it's not a different story at all, no matter what Mueller would have you believe. It's just different players. First, Mueller is wrong when he says that Torvalds doesn't have a say in the matter of GPL violations of the Linux kernel. As the sole copyright owner of the Linux kernel he pretty much has most of the say. I would suspect the Linux Foundation and the rest of the legal stakeholders in the Linux kernel have a say, too. But his broader point "the interpretation of the GPL and of copyright law at large is in the hands of the courts" is absolutely 100 percent true: GPL violations are in the hands of the courts.

And when there is a court case on specific GPL violations in Android, there will certainly be a lot to talk about. But there isn't a court case. There is nothing to enforce because no one has made a formal complaint.

There are, undeniablely, compliance issues to address. But compliance issues do not involve full-scale thermonuclear war-style legal injunctions every single time, right out of the gate. Naughton believes the SFC will sue someone at any moment based on their arguments in the BusyBox case. But the SFC (nor the SFLC) does not spontaneously sue people... in the BusyBox case the SFC were acting on behalf of BusyBox developers. They were asked for help and only filed the harsher injunctions, presumably, when Best Buy and Phoebe decided to not pay damages.

Until there's an actual case that actually could affect the bottom line of a business in the Android ecosystem, it's all hypothetical FUD, designed to kick the legs out from under the Android operating system by (a) spooking current and potential Android vendors and (b) scaring away developers who only want to work with open source code. (Regarding point (b): trust me, if anyone has issues with Android's open/non-openness they would be long gone by now.) And the head of the SFC, one of the biggest enforcers of the GPL violations on, you know, the planet, has yet to see any enforceable claims of GPL violation in Android.

"This is a continuing FUD campaign, pure and simple," Kuhn wrote today, "these people, as near as I can tell, don't actually care about actual GPL compliance but rather want to use confusing statements about GPL compliance to prop up their own agendas."

Naughton preemptively tried to deflect the accusation of FUD when he wrote, "[s]ome may dismiss it reflexively as scaremongering, but that response is just too simple." I'm pretty sure that was addressed at dumb non-lawyer hicks like me. But it really is a simple argument; no matter how much you dress up the pig, it's still just a pig.

Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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