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Who's Behind the Google-Linux License Ruckus? 241

Posted by Soulskill from the my-money's-on-the-joker dept.
jfruhlinger writes "Yesterday, news broke that Android might have a Linux copyright problem, which would be big trouble for Google, already locked in an IP struggle with Oracle over the mobile platform. Blogger Brian Proffitt looks deeper into the alleged violations. He notes that, while it's possible that Google's on shaky ground, the motivations behind the news release are murky: the lawyer who outlined the violation is an ex-Microsoft hand, and the news was widely propagated by gadfly Florian Mueller, who's tangled with Google over patent issues in the past. Moreover, the alleged violations are in header files, and it's not clear that those are copyrightable; if they are, no actual copyright holders have come forward to complain."
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Who's Behind the Google-Linux License Ruckus? More

Who's Behind the Google-Linux License Ruckus?

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  • No complaints? (Score:2, Informative)

    by shutdown -p now ( 807394 )

    There may be no specific complains yet, but Linus has been quite explicit and unambiguous [lkml.org] in the past about how he thinks the GPL applies to Linux kernel headers:

    In short: you do _NOT_ have the right to use a kernel header file (or any other part of the kernel sources), unless that use results in a GPL'd program. ...
    BUT YOU CAN NOT USE THE KERNEL HEADER FILES TO CREATE NON-GPL'D BINARIES.

    Of course, Linus is not a lawyer, and his interpretation of GPL may not be correct. But the gist of the original story was that it was legal analysis made by an IP lawyer, and he essentially agreed with Linus.

    Oh, I know, I know! Linus is a paid Microsoft shill! Right?

    • Re:No complaints? (Score:5, Informative)

      by tomhudson ( 43916 ) <barbara DOT huds ... a-hudson DOT com> on Friday March 18, 2011 @05:57PM (#35537450) Journal

      There may be no specific complains yet, but Linus has been quite explicit and unambiguous [lkml.org] in the past about how he thinks the GPL applies to Linux kernel headers:

      In short: you do _NOT_ have the right to use a kernel header file (or any other part of the kernel sources), unless that use results in a GPL'd program. ... BUT YOU CAN NOT USE THE KERNEL HEADER FILES TO CREATE NON-GPL'D BINARIES.

      Of course, Linus is not a lawyer, and his interpretation of GPL may not be correct. But the gist of the original story was that it was legal analysis made by an IP lawyer, and he essentially agreed with Linus.

      Oh, I know, I know! Linus is a paid Microsoft shill! Right?

      Okay, now you're definitely trolling, seeing as we've dealt with that question numerous times, and the COPYING file makes it clear that you CAN use kernel headers to make user-land binaries without triggering the "distribution" clause.

      What you can't do is make a closed kernel.

      NOTE! This copyright does *not* cover user programs that use kernel
      services by normal system calls - this is merely considered normal use
      of the kernel, and does *not* fall under the heading of "derived work".
      Also note that the GPL below is copyrighted by the Free Software
      Foundation, but the instance of code that it refers to (the Linux
      kernel) is copyrighted by me and others who actually wrote it.

      Also note that the only valid version of the GPL as far as the kernel
      is concerned is _this_ particular version of the license (ie v2, not
      v2.2 or v3.x or whatever), unless explicitly otherwise stated.

      Linus Torvalds

      GNU GENERAL PUBLIC LICENSE
      Version 2, June 1991

      So, since the limitations of the GPL (distribution of source) have been expressly waived for userland programs that only call kernel services, there is NO copyright violation for using the header files in such a fashion, ever.

      But keep shilling. It gives more opportunity to refute your arguments.

      • The COPYING file you quote makes no mention of kernel headers. It merely says that using the kernel via the mechanism of invoking system calls at runtime is OK.

        So, since the limitations of the GPL (distribution of source) have been expressly waived for userland programs that only call kernel services, there is NO copyright violation for using the header files in such a fashion, ever.

        That does not follow. There are many possible ways to produce a program that makes system calls into the kernel. The fact that making such system calls is OK does not mean that all ways of producing such a program are OK.

      • But keep shilling. It gives more opportunity to refute your arguments.

        What's up with this obsession on /. that anyone that says anything that can remotely construed as anti-Linux or pro-MS are paid shills? Can't geeks have an argument in peace without throwing baseless accusations around?

        Slashdot did its share of shilling and spreading FUD in the case of Vista DRM etc. and was even publishing results of fake benchmarks against Windows 7.

        PS: If anyone from MS reads this, please contact me to pay me for my shilling. Looks like I am missing out on all the actions Thanks. /joke

      • Re:No complaints? (Score:4, Interesting)

        by shutdown -p now ( 807394 ) on Friday March 18, 2011 @10:23PM (#35539402) Journal

        The topic of "shilling" etc is, hopefully, settled in the other thread.

        However, I don't quite understand the applicability of the note you've quoted. From the wording, it sounds more like an attempt to disambiguate what "linking" is (or, more generally speaking, what a "derived work" is), in the context of userspace vs kernel. While the consensus has always been that apps written for an OS are not works derived from that OS, even though they directly or indirectly use its syscalls - even Stallman agrees on that, last I checked - the entire topic is rather hazy from a strictly legal perspective. After all, FSF says that dynamically linking to libraries does create a derived work for GPL purposes - and that is not fundamentally different from doing syscalls. In both cases, the client binary doesn't have any machine code derived from the source code of the library/kernel, but only calls with matching names & arguments.

          A note like the one you quoted straightens it out: using normal system calls does not make a derived work, even if GPL itself could somehow be interpreted otherwise.

        However, the note does not say anything about copyright on the headers. Re-reading the original article (the one before this), it seems that headers in question do actually have the GPL copyright notice in them. In this case, Google stripping that out is definitely wrong, because their process clearly creates a derived work (after all, it does take the original header as input, and applies purely mechanical transformations; I think this is clear cut). As the resulting derived work - the Bionic headers themselves - is not a "userspace binary" (it's not a binary at all!), the exclusion notice in COPYING does not apply to them. However, the notice prevents this from being "viral" - it basically says that userspace apps are not considered derived works by the authors of the kernel at all, regardless of anything else; and thus GPL (or rather copyright itself) simply does not apply.

        So it seems to me that "everyone is violating GPL by writing closed-source Android apps" part is FUD, but Google still has some house cleaning to do here to be in the clear - either put the GPL copyright notice back into the headers (with an explanatory note as to why this does not apply to userspace programs including those headers), or else ask the kernel folk to grant them an exception.

        • Re:No complaints? (Score:4, Informative)

          by butlerm ( 3112 ) on Saturday March 19, 2011 @05:57AM (#35541032)

          In this case, Google stripping that out is definitely wrong, because their process clearly creates a derived work (after all, it does take the original header as input, and applies purely mechanical transformations; I think this is clear cut).

          Courts have held in the United States that technical interfaces are not copyrightable. That includes structure names, layouts, and so on. See here [fenwick.com] (pdf).

          So if you take a header file and remove all the copyrightable contents (comments and so forth), what you are left with is technical interface meta data that is not protectable by copyright. That is not likely to go so far as legitimizing copies of non-trivial inline functions, but so far as ordinary manifest constants, structure layouts, and function declarations are concerned, if Baystate v. Bentley Systems (1996) means anything, Google appears to be in the clear.

    • Of course, Linus is not a lawyer, and his interpretation of GPL may not be correct. But the gist of the original story was that it was legal analysis made by an IP lawyer, and he essentially agreed with Linus.

      I'll give you a specific example where Linus is dead wrong. errno.h. This header, from the kernel, is included in almost every Linux user-space program, whether open source or not. (glibc's errno.h includes the kernel's errno.h) If you can provide an example of a kernel header file you think would be a problem to include, please specify it.

    • Re: (Score:2)

      by cfulmer ( 3166 )
      Let's be careful here.... If using kernel interfaces is a copyright violation, then why doesn't using other interfaces also constitute a copyright violation?

      • Well, according to the FSF, if you dynamically link to a GPL'd library (and that is strictly "using other interface"), the result is derived work. I don't see how kernel is any different.

        The original argument for C/C++ was due to you including the header. When people pointed out that a determined developer could just hand-write all function prototypes and type declarations to match, and that in Java and the likes there are no mechanically included headers, Stallman basically said that, so long as the API is

    • Copyright doesn't apply to all source code. A lot of programmers don't realize this, but check it out. [wikipedia.org] Specifically it doesn't apply to header files required to interoperate in a normal way with a system, because they are not expressive. Another analysis [winehq.org]. Note that in the same conversation you linked to, Linus defended the fact that not all kernel drivers are GPL, and that despite the fact that any kernel module would use kernel header files.

      Google only used the header files with constants and struct defi

  • And Bionic is different from glibc how? (Score:5, Insightful)

    by tbird20d ( 600059 ) on Friday March 18, 2011 @05:43PM (#35537338)
    This whole thing just makes me angry, because it ignores legal standards that have applied to Linux and been accepted by all parties, for years. If Naughton's legal analysis is correct, and use of the Linux header files causes the GPL to apply to the utilizing work, then glibc is in more danger than Bionic is. glibc is LGPL, not GPL, and has been using "full" Linux kernel headers for years. How could Bionic, using a stripped down subset of the same headers, be subject to the GPL, if glibc is not?

    • Perhaps the glibc authors obtained permission?

    • Re:And Bionic is different from glibc how? (Score:4, Interesting)

      by MtHuurne ( 602934 ) on Friday March 18, 2011 @07:39PM (#35538392) Homepage

      What I gathered from the previous articles is that Bionic includes headers that are automatically generated from the Linux kernel headers with a statement added by Google that those generated headers contain no copyrightable material. What glibc does is compile against the unmodified Linux kernel headers, which must be present in some directory on the machine doing the build. So glibc includes the kernel headers by means of the C #include preprocessor directive, not by copying text fragments from them into the library package. I haven't looked at the Bionic sources, so I haven't verified this myself; it is based on statements in the articles.

      What I wonder is why Google would not simply compile their libc against the Linux kernel source, like glibc does. That would avoid the legal uncertainty. Is there anyone familiar with the Android internals who can shed some light on this?

      • What I gathered from the previous articles is that Bionic includes headers that are automatically generated from the Linux kernel headers with a statement added by Google that those generated headers contain no copyrightable material. What glibc does is compile against the unmodified Linux kernel headers, which must be present in some directory on the machine doing the build. So glibc includes the kernel headers by means of the C #include preprocessor directive, not by copying text fragments from them into the library package.

        I don't think it matters whether you #include or redistribute. If it does indeed work as you describe, then it sounds like glibc binary would be GPL'd (or so FSF says). But I've checked the license on the corresponding (binary) package in Fedora, and it's LGPL. Interesting.

    • Re:And Bionic is different from glibc how? (Score:4, Interesting)

      by phantomfive ( 622387 ) on Saturday March 19, 2011 @01:40AM (#35540258) Journal
      The legal analysis is here [brownrudnick.com]. The argument is basically that Bionic copied directly from the kernel, like this clever implementation of a byteswap [kernel.org]. It's the cleverness that makes it copyrightable, whereas headers that only include defines used for interopt are not copyrightable. The glibc version [redhat.com] of the same file is original; it doesn't come from the Linux kernel (at least I can't find it). So the problem is there may be original ideas that come from the linux code that got put into bionic. At the same time, it would be hard to argue that a program linking to a standard C library is a derivative work of that particular implementation. I believe such an argument would get laughed out of court.

      Now, this guy is a lawyer, and he understands copyright law more than me, but his understanding of this particular issue is weak. The example given earlier, of the bytewaps, does not apply at all to any developers on ARM because that was x86 specific code.

      His second argument is extremely weak. He says the API is also copyrightable (which is sometimes true), and that if it were not, someone could use it to re-implement a closed source version of Linux. Which is true, but it's a rather braindead thing to worry about: getting the API is not the hardest part of that (and indeed, BSD has a linux compatibility layer that responds correctly to the Linux APIs).

  • More noise from Microsoft, obviously (Score:4, Informative)

    by eee_eff ( 1254240 ) on Friday March 18, 2011 @06:15PM (#35537636) Homepage
    Microsoft has been shown to be behind the SCO lawsuit rather convincingly by groklaw. This is just more noise, and I am not surprised to see Florain Mueller, paid Microsoft stooge, jumped very quickly on this astroturfed bandwagon. See that Ed Naughton's bio used to list all of the work he had done for Microsoft and now it is suddenly revised. Microsoft is one of the most deeply immoral companies ever with no respect for the idea of truth, let alone integrity. As covered at Groklaw news picks:

    "Edward J. Naughton bio gets revised [PJ: Edward J. Naughton, the attorney Huffington Post just published claiming Android may be in violation of the GPL has done work for Microsoft. Surprised much? His article states this at the end: "The views expressed are my own individual views and should not be attributed to any clients." Nevertheless, at least one of them may be delighted. His bio has changed recently. The link above is to its current state, where you will not find any mention of Microsoft. It's been changed to a "Fortune 50 software company". Here's what used to be on it, still in Google cache, a snapshot taken recently, on March 8]: - Co-counsel defending Microsoft against a putative consumer class action alleging that it had violated wiretapping statutes and common law privacy rights by designing Windows to permit third parties to place cookies on computers. Obtained dismissal of complaint.... - Represented Microsoft in several dozen lawsuits against resellers and corporate end-users of counterfeit, infringing, and unlicensed software. - Brown Rudnick bio page for Naughton

    • Re: (Score:3)

      by gutnor ( 872759 )
      Correlation is not causation. The reason they are all connected to Microsoft can also be that they are just a bunch of greedy bastards that try to whore some attention/prestige with the least effort possible, i.e. using their old turf as starting point. For the SCO case, people would like to think that Microsoft coerced SCO to go against Linux. I'm more convinced that SCO got the idea itself and begged Microsoft for cash.

      It is not defending Microsoft btw - there is enough *direct* evidence that they deser

  • Others pointing fingers... (Score:4, Insightful)

    by novar21 ( 1694492 ) on Friday March 18, 2011 @06:24PM (#35537730)
    always makes me suspicious. If you have nothing to gain (financially or otherwise) what is the purpose of making statements that someone may be doing something illegal or that ramifications could be disastrous. The only purpose would be to spread fear, uncertainty, or doubt to benefit another entity. It seems like gossip to me. It is very distasteful, and I try to avoid reading things of that nature. Although I must state that I am an android phone owner and very happy with the device. I will probably buy my wife one this June. If the Linux Kernel writers do not like what has been done, so be it. I can write software. And I am willing to release it under a GPL'ed license. This is not a big deal to me.

  • Florian Mueller? (Score:5, Insightful)

    by Trufagus ( 1803250 ) on Friday March 18, 2011 @06:28PM (#35537760)

    Florian Mueller has zero credibility left.

    Remember? He was the guy who claimed that Android included source stolen from Oracle's Java. After getting enormous publicity the whole thing was debunked:
    http://www.zdnet.com/blog/burnette/oops-no-copied-java-code-or-weapons-of-mass-destruction-found-in-android/2162 [zdnet.com]

    So, why are we still listening to him? There are millions of voices on the Internet, shouldn't we listen to one of the ones that still has credibility?

    • That's going a bit far.

      1) He is honest about who he is - no anonymous astroturfing. He posts something and defends his views on the public internet. Someone with no credibility would not do so. PJ accused him of being paid by MS and he did not (admit or) deny this.

      2) His arguments have changed over time, and I agree that he tends to be more and less vocal in ways that imply someone is directing his energy rather than personal passion reacting to events. However his arguments make moderate sense - I thin

  • Well, what bionic does with headers is arguably questionable, but nothing half as questionable as the oracle stuff. But the idea that you can claim copyright on header files is a bit bizarre. Header files are supposed to be a definition of an interface, not an implementation. So if you want anything to work on your system, you'd best not claim copyright over your headers.

    But the idea that android app developers have to comply with the GPLv2 because of headers that interface between two and one layers below

  • of much more serious concern - to google - is the fact that they are *knowingly* not pursuing GPL Copyright Infringement cases against Android-Linux GPL violators. if you fail to pursue a Copyright violation, it can be argued that you have "no interest" in protecting the Copyrighted material. as it is not in google's interests to pursue copyright violations because that would reduce the number of google android systems in the world, thus affecting their bottom line by reducing advertising income, they're

  • What Google is Really Doing Wrong (Score:3)

    by harlows_monkeys ( 106428 ) on Friday March 18, 2011 @06:47PM (#35537974) Homepage

    OK, I know this is going to get voted way down as a troll attempt or something, but seriously--the real thing Google is doing wrong is using Linux. Since they want Android to be licensed as much as possible under more open licenses (they used Apache 2 for nearly all of their original code), they should have went with a BSD kernel. There's no real technical advantage to Linux over BSD in this kind of application, and it would sidestep all risk of this kind of potential license problem.

    Same for all the various router manufacturers, set top box makers, TV makers, and so on that have run into GPL problems. I have no idea why no one has made something like BusyBox, but built around BSD and similarly licensed software.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      I agree because I vastly prefer the BSD license to the GPL.

      I disagree because it would be abused by phone manufacturers. Proprietary kernel changes? Closed drivers? Fuck that.

      Right now Android is in a precarious balancing act which actually seems to work. GPLed driver development means any off-the-shelf phones can be ported to run on non-stock kernel builds (assuming the phone is unlocked). BSDed userspace APIs means manufacturers adopt and develop for Android because they can keep their app and library cod

    • It's the same reason why they chose Java for Android-- it's something that they're familiar with.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      OK, I know this is going to get voted way down as a troll attempt or something, but seriously--the real thing Google is doing wrong is using Linux. Since they want Android to be licensed as much as possible under more open licenses (they used Apache 2 for nearly all of their original code), they should have went with a BSD kernel. There's no real technical advantage to Linux over BSD in this kind of application, and it would sidestep all risk of this kind of potential license problem.

      Same for all the various router manufacturers, set top box makers, TV makers, and so on that have run into GPL problems. I have no idea why no one has made something like BusyBox, but built around BSD and similarly licensed software.

      If you have no idea why everybody else is doing something, you should find suspect perhaps they know something you don't.

      In this case, there is a huge technical advantage to using Linux over BSD. Where to start? First, Linux has far, far more drivers for the hardware you need on mobile devices. And a lot more people know how to write such drivers, so it's far easier to hire someone to write a new one for you. Second, Linux has enormous resources poured into it from multiple corporations and independent cont

  • Unless the copyright holders actually try and pursue this with legal action it doesn't actually matter what license applies.

  • Well, this is the world he wanted to create with the viral nature of the GPL, i hope everyone is happy with it. And no, I'm not flaming him, its what he wanted and its what he got, for better or for worse.

    • If you repeat this thought enough times, people will start to believe it. Too bad it is a big lie, what Richard wants is for free to remain free, that is all.

      • If you repeat this thought enough times, people will start to believe it. Too bad it is a big lie, what Richard wants is for free to remain free, that is all.

        You and the parent post agree, you just fail to understand his point.

    • Re: (Score:2)

      by jedidiah ( 1196 )

      ...except most of the important stuff is not "pure GPL". It's LGPL and that lessens the viral impact of things considerably.

  • oh noes (Score:2)

    by smash ( 1351 )
    google vs linux, how can we spin this to not be negative to both????

  • Google's going to be attacked by everyone right now, consider the fact that their Android mobile OS is very successful in the marketplace, their market share is up, and current projections are that they'll overtake the competition within just the next few years. All of their competitors are going to try to stop them by whatever means they can, even if that means using the courts, right or wrong, with or without evidence or a solid case against them.

    Look at what happened to Apple's iPhone4, with the possible

    • That's really not analogous. People attacked Apple over the death grip thing because they were claiming that it didn't exist and tried to pawn it off on other issues. On top of that they were outed over not properly testing the device in the first place. Testing a phone's reception while housed in a disguise is hardly what any reasonable person would consider real world testing.

      Plus, wasn't RIM the maker with the largest user base during that period?

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