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Has Bionic stepped over the GPL line?Has Bionic stepped over the GPL line?Posted Mar 20, 2011 22:55 UTC (Sun) by jmm82 (guest, #59425)Parent article: Has Bionic stepped over the GPL line?
"It's certainly not impossible to imagine someone filing a lawsuit over Android's use of the kernel headers"
What is required for someone to have authority to bring google to court on a kernel violation? Who can file a lawsuit, anyone who has committed code to the kernel?
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Has Bionic stepped over the GPL line? Posted Mar 20, 2011 23:03 UTC (Sun) by jake (editor, #205) [Link]
> Who can file a lawsuit, anyone who has committed code to the kernel?
It's an interesting question. For this particular issue, my guess would be that they would need a copyright on some part of the kernel header files that are used in Bionic. Writing a random device driver, for example, would seem to lack the proper standing. Actually, of course, all of that is incorrect, anyone could *file* a lawsuit (even with no kernel copyright, I suppose), but to have a reasonable standing to make any progress, I would think you would have to have copyrights that are directly involved. IANAL of course.
jake
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 0:42 UTC (Mon) by jmm82 (guest, #59425) [Link]
Thank you for the response. I am glad to see a clear written article on this topic. Here is the closest I could find to an answer from the gpl FAQ
"Who has the power to enforce the GPL?
I think your response is reasonable, but if I recall correctly, the Linux kernel does not have any form of copyright assignment and therefore all contributors per se are copyright holders.
The real question I guess I was really thinking was have any kernel developers voiced concerns in this topic or is this just lawyer bloggers trying to create something out of nothing?
I can honestly say I have meet misinformed people who read these headlines in the news and are worried to buy android phones out of fear of breaking the law. This is really sad.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 1:45 UTC (Mon) by corbet (editor, #1) [Link] I have yet to encounter a kernel developer who is concerned about the use of header files in bionic. That does not mean that no such developers exist, of course, but I suspect they are relatively rare.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 5:33 UTC (Mon) by FlorianMueller (guest, #32048) [Link]
Since it only takes one out of thousands of contributors to cause a problem (provided that he has standing, but he could find a jurisdiction that suits him for that purpose), it isn't reassuring for the ecosystem that there may be thousands of other contributors who don't care. Those thousands of other contributors could all tell the court that they're fine with this, and the court would still have to decide one contributor's complaint on the basis of its merits.
This is again the question I already mentioned in my reply to @bkuhn above: what degree of legal certainty is reasonably required when we're talking about a platform on which an entire ecosystem is built? (as opposed to a device driver affecting only a single vendor, or a component of a single third-party app)
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 18:33 UTC (Mon) by rahvin (subscriber, #16953) [Link]
NOT thousands of contributers. The only ones with copyright in the headers are the ones who WROTE the headers. That's it. Some random developer who has a small piece of code in the kernel has no copyright on the headers. That is if the headers even have copyright. Much like the SCO case the headers could be considered API/ABI and be completely fact and devoid of copyright. There is substantial case law to support that conclusion in the US.
Has Bionic stepped over the GPL line? Posted Apr 2, 2011 5:54 UTC (Sat) by Duncan (guest, #6647) [Link]
Note that I'm neither a lawyer nor a kernel dev. If you're trying to use my posts as legal justification for anything contextually related without getting the opinion of professionals in at least one of those fields, your nuts!
Yours is the first post I've seen to bring out the important SCO headers point. Linux itself is dependent on the principle of headers being factual/technical presentations of the ABI and thus uncopyrightable as such. After all, Unix (R) Signal numbers, etc, as used by Linux, come from such headers. But there's quite some case history establishing such headers as interface facts, not copyrightable at least in the US.
In fact, at least within the US, the principle goes further as well. Independent reimplementations done specifically for interoperability with the public interface as customarily expressed in the headers are generally specifically allowed as well. Again, that's (part of) what let Linux off the hook in terms of the Unix (R) signal interface and (one of) the reason(s) that code couldn't be properly held as evidence of infringement. (Another was the fact that said signal interface code had been published in a public context in sources predating either SCO or Linux, said sources likely being the common source for both, thus SCO's confusion when they appeared to be duplicates.) As such, yes, the kernel headers as BOTH Google Bionic and glibc use them COULD be used as a basis for an independent kernel reimplementation. Without an audit it's certainly possible that a few trivial violations could leak thru, and that's actually what I expect all the experts that FM is pointing at are allowing for -- they've not done that audit and aren't under retainer to do it or to make a legally valid opinion as representing anyone, so they're allowing themselves the typical out that even debaters quickly learn -- don't make all inclusive statements without some out, some qualifier, if one hasn't actually done the work necessary to ensure no trivial logic leak, since an all-inclusive statement without qualifier is disproved with the most trivial possible exception.
But the point is, Google's sufficiently GPL averse to have avoided the Linux kernel and chosen a BSD implementation, or written or bought their own from elsewhere, if the Linux kernel itself didn't have SOME overriding value. That they chose Linux in spite of their otherwise GPL aversion demonstrates the value they consider it to have. Reimplementation? Perhaps, if you've got a couple billion dollars to pour down a rat hole. And why would they do that, starting from scratch, when they could have simply based on a BSD instead, avoiding the whole GPL issue? Certainly, Google's got a lot of money to throw around if it wants, but as equally certainly, it's not going to have it for long if it starts doing such useless things as a from-scratch Linux reimplmentation when it could have started with one of the BSDs instead.
Also, keep in mind that as Greg KH and others are fond of pointing out, Linux now runs on the widest variety of hardware, with drivers for the widest variety of hardware, of any OS out there. And while the USER application binary interface (ABI) as expressed in those headers may be fair game, the in-kernel modular interface expressly is NOT, with many internal kernel declarations exported for module use specifically as
So it's unlikely to happen, unless of course perhaps as a personal hobby, perhaps of some random Finnish college student... and who could rightly predict where THAT might lead! =:^)
Duncan
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 14:08 UTC (Mon) by spaetz (subscriber, #32870) [Link]
> I have yet to encounter a kernel developer who is concerned about the use of header files in bionic.
Well, given that many employee's code will probably have (c)BreadPayingCompany, it only takes, say, someone to buy Novell (or all its IP), or bribing Nokia to launch such an action. Both possibilities are not totally improbable :-).
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 2:23 UTC (Mon) by wahern (subscriber, #37304) [Link]
It's highly improbable that by purchasing and using an Android phone the user would be doing anything illegal under Copyright law. Here are the exclusive rights a copyright holder has over their material:
http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106-...
The only feasible avenue of infringement is #1, copying. By turning on the phone, you're initiating various copies of the software to made in memory. But there are two interdependent problems here.
(1) To be a "copy" in the sense of copyright, it must be in a tangible form by which it can be perceived. Though RAM copies can definitely be considered tangible and perceptible--by, for example, controlling video--much turns on whether the content of those copies are eventually somehow made perceptible. Just because it's in RAM doesn't make it perceptible if there's no normal mechanism to make it perceptible.
(2) Just because Android applications may be derivative of the GPL'd header files, does *not* mean that they necessarily contain copyrightable content from the header. There are separate technical and legal arguments here. Thus, though the creator may be liable to the Linux kernel copyright holders for making derivative works, the user of those derivative works would be violating that copyright by making in-memory copies only if the derivative work actually contains embedded copyrighted expression from those header files.
There are strong reasons, using either or both of these points, that a user would be doing nothing wrong by using an Android phone.
But there's also a couple of more practical points. For one thing, the user would never be sued. And even if they were there are strong defenses concerning notice. Secondly, from an ethical standpoint, people violate copyright constantly. No person can not violate copyright. Ever hear a tune on the radio and type a few lines of lyrics in an e-mail? That's a copyright violation. Multiple if you actually sent the e-mail (copying, plus distribution, plus maybe displaying if going to a list).
The nature of copyright law is that there are huge grey areas, and everyone and everybody has violated copyright more times than they'll ever possibly know (in ways that are completely black and white). There is no rational reason to think that by using a Windows CE or Symbian phone that you're not also violating someone's copyright (if in the Android case you would be).
The problem with fixing copyright is the same problem that exists when you make any rule of law more clear; you then make it easier for the scofflaws to subvert the intention of the law.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 2:32 UTC (Mon) by wahern (subscriber, #37304) [Link]
Oh, and a third reason no copyright violation. Perhaps the most obvious. The GPL gives that user the right to use the software and derivatives! (To the limit of the original copyrighted work; it can't give rights to others' expression.) Just because the derivative author is violating the terms of the license doesn't mean that you don't get a license to use that original software. And unless you distribute that software further, you don't need the source code; you can make all the in-memory copies you want.
In fact, that's an exceptionally strong argument for using an Android phone instead of Windows CE or Symbian or other any not Free Software OS. It's more likely than not that those phones are violating someone's copyright, yet you would never receive the benefit of the GPL license and so would be infringing yourself.
So really, anyone concerned with abiding by the letter of Copyright law should be using Android phones.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 5:37 UTC (Mon) by FlorianMueller (guest, #32048) [Link] Oh, and a third reason no copyright violation. Perhaps the most obvious. The GPL gives that user the right to use the software and derivatives! The concern I discussed isn't really about lawsuits against users -- those are a hypothetical possibility but it's hard to see why anyone would do that. The concern is about device makers and app developers who built software that may be copyleft-affected and could be enjoined from distributing it on non-GPL terms. Of course, if that happened, it would also affect users: potential users who can't buy until the issue is settled, and actual users who can't get upgrades until that point. But that's not the #1 concern.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 2:50 UTC (Mon) by rgmoore (subscriber, #75) [Link] I think your response is reasonable, but if I recall correctly, the Linux kernel does not have any form of copyright assignment and therefore all contributors per se are copyright holders. #include <ianal.h> But copyright holders in what? The assumption that everyone seems to make is that Linux would be treated as a compilation, where individual authors hold copyright on their specific contributions. So somebody who only worked on network drivers wouldn't be able to claim that their copyright had been violated by Google using kernel headers. Somebody could claim, though, that Linux is actually a collaboration, where everyone who worked on it would have a share in the copyright on the whole. That makes some sense, since the whole thing can be compiled into a single binary. Nobody knows for sure which theory of copyright would hold in practice, since the issue has never been litigated. I doubt that anything with a copyright situation anywhere close to as complicated as Linux's has ever been completely litigated. Even if the collaboration theory held, a judge might rule that a specific author's contributions were small enough that the violation was de minimus and dismiss a suit for that reason. I'd certainly expect standing to be a big issue in any copyright violation suit involving Linux.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 3:00 UTC (Mon) by mjg59 (subscriber, #23239) [Link]
My loose (and, obviously, I am not a lawyer) understanding is that under US law the kernel could be considered either a joint work or a collective work. In a joint work I believe that any copyright holder could enforce the copyright of the entire work - but the flipside of that is that any copyright holder could also grant a non-exclusive license to anyone else, absent contractual obligations. In that case anyone holding copyright on a portion of the kernel could grant permission for the entire kernel to be used under terms other than the GPL.
It seems more likely that the kernel would be considered a derivative work, ie one in which each author only holds copyright over their specific contributions. I don't know that that's ever been tested in court, but nor am I busy establishing a business case for licensing the kernel to Microsoft in return for a couple of yachts.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 6:08 UTC (Mon) by FlorianMueller (guest, #32048) [Link] I don't want to comment on your view of US law, but I would like to stress that it's not just about that one jurisdiction. The question is whether Google is safe in the fastest as well as the most difficult jurisdiction that represents a significant market. I just recently researched and reported on the seizure of 300,000 PlayStations in Europe. That decision was achieved within a few days, and on a legal basis that doesn't have an equivalent concept in the US (the closest thing there would be an ITC proceeding, which takes 16-18 months however). It's an example of how someone who seeks to assert rights may just pick the most convenient place. The PlayStation seizure was based on the alleged infringement of intellectual property rights. (In this case, the seizure order was lifted -- lucky Sony.)
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 18:39 UTC (Mon) by rahvin (subscriber, #16953) [Link]
And the decision was vacated a short time after they were seized and all the consoles impounded were promptly released back to the manufacturer for distribution in the EU. So now your FUD is that it's dangerous in Europe, where's the evidence? The EU case law? You are citing a paper prepared on the basis of US law and citing it against EU precedent. Now that's out there.
Has Bionic stepped over the GPL line? Posted Mar 23, 2011 17:26 UTC (Wed) by rgmoore (subscriber, #75) [Link] My loose (and, obviously, I am not a lawyer) understanding is that under US law the kernel could be considered either a joint work or a collective work I'm not sure if the kernel would wind up being considered exclusively one or the other. It would be perfectly reasonable to consider each individual source file a joint work (what I called a collaboration) of the people who contributed to that individual file, while the source tree as a whole would be considered a collective work (what I called a compilation). Since the compiled kernel is a derivative of the whole source tree (delta any files that are configured out), it would be a joint work of all contributors. And, of course, there are other little twists to consider. If I contributed a file 10 years ago that's still in the kernel, but all of the original code has been gradually ripped out and replaced, do I still have a valid copyright interest in the current version of the file? Does it matter if some of the comments I included in the original file, like a description of the file's purpose, are still there? What if the functions were taken out of the file, moved to other files, and later replaced; do I have some interest in the files that once contained functions I wrote? Does it matter if the functions were replaced before or after they were moved? This is potentially important if it turns out there are legal problems with my contribution, e.g. it's not really my work but copied from some other, GPL incompatible work. It's possible that there's a legal precedent describing something like that, but as IANAL I don't know the answer. In a joint work I believe that any copyright holder could enforce the copyright of the entire work - but the flipside of that is that any copyright holder could also grant a non-exclusive license to anyone else, absent contractual obligations.On the second part, the GPL would probably constitute the "contractual obligations" that would keep any author from relicensing willy-nilly. Anyone who contributed after the code was put under the GPL did so pursuant to that license; they're only allowed to make contributions with the understanding that the whole will be licensed under the GPL. That probably forbids them to relicense the work as a whole under other terms.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 9:39 UTC (Mon) by ekj (guest, #1524) [Link]
True. So the only thing you can say is that an author who wrote a specific piece *certainly* has standing to complain about violations affecting the piece he wrote.
Either he has standing because he wrote that specific part, or he has standing because he holds joint copyright on the kernel as a whole.
This particular muddling is nonsense though. Worse than that, it's like nonsense for several distinct reasons, any ONE of which would be sufficient.
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