Google's Android faces a serious Linux copyright issue

http://fosspatents.blogspot.com/2011/03/googles-android-faces-serious-linux.html

by FlorianMueller • 15 years ago

58 81 15 years ago

fosspatents.blogspot.com

sjs382• 15 years ago

Google copied 2.5 megabytes of code from more than 700 Linux kernel header files with a homemade program that drops source code comments and some other elements, and daringly claims (in a notice at the start of each generated file) that the extracted material constitutes "no copyrightable information".

Uh, what?

If Google is proven wrong, pretty much that entire software stack -- and also many popular third-party closed-source components such as the Angry Birds game and the Adobe Flash Player -- would actually have to be published under the GPL.

Stopped reading after this...

anon13856• 15 years ago

If you link to GPL libraries you must abide by the terms of the GPL. The same applies to using the kernel header files. Or at least Torvalds believes this to be the case, as do the IP lawyers quoted[1]. Quote from Linus:

"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."

"So you can run the kernel and create non-GPL'd programs […] BUT YOU CAN NOT USE THE KERNEL HEADER FILES TO CREATE NON-GPL'D BINARIES. Comprende?"

The solution seems to be to re-licence Bionic under the LGPL, which is what the C libraries of every other linux based OS do. Although that does seem to suggest that one can always work around the GPL linking restriction by creating an intermediate LGPL library, but I'm no lawyer so maybe there is some reason that is not allowed.

[1] http://www.brownrudnick.com/nr/pdf/alerts/Brown%20Rudnick%20...

FlorianMueller11• 15 years ago

I agree that linking to GPL libraries has GPL implications. Concerning a relicensing of Bionic under the LGPL, it's important to consider that only the original copyright holders can simply relicense (like MySQL, which granted non-GPL licenses to its database). The safe way would be for Google to use glibc, like MeeGo and webOS do.

colanderman2• 15 years ago

> The solution seems to be to re-licence Bionic under the LGPL, which is what the C libraries of every other linux based OS do. Although that does seem to suggest that one can always work around the GPL linking restriction by creating an intermediate LGPL library, but I'm no lawyer so maybe there is some reason that is not allowed.

Seeing as this is exactly what GNU's very own libc does, I don't see how it could not be allowed.

cabalamat• 15 years ago

I'm sure that Linus does not think that programs that run on the Linux kernel should have to be GPL'd. I doubt if Angry Birds or Flash use kernel header files -- they call the kernel, yes, but as userspace programs not as part of the kernel.

rickmb• 15 years ago

I almost stopped reading after this, because I agree it sounds like FUD, but I urge you and everyone who upvoted this to actually read the whole article.

He actually makes a pretty decent case for this.

nextparadigms• 15 years ago

This is what you get when lawyers try to understand developer stuff. Plus, it sounds like more FUD to me.

anon13856• 15 years ago

Or possibly it's what happens when developers who don't understand legal stuff try to circumvent software licences.

dminor2• 15 years ago

How not to get snookered by claims of "proof" of copyright infringement: http://www.groklaw.net/article.php?story=20110122054409107

FlorianMueller11• 15 years ago

That Groklaw article failed to explain that the code in question is indeed distributed online by major Android device makers such as Motorola, Samsung and LG: http://fosspatents.blogspot.com/2011/01/android-device-maker...

dminor2• 15 years ago

I'm not claiming it as truth - just letting people know that there's a history here and opinions on both sides.

jrockway• 15 years ago

I think the issue is whether or not header files are copyrightable. In verbatim form, they are, but it's easy to recreate identical header files without copying the source code: have someone read the header file, write a list of functions and signatures, use this spec to write an identical header. Google wrote a program to do this.

I am fine with the outcome either way. If everything on Linux has to be GPL'd, excellent: more freedom for everyone. If Google's stuff is OK: that makes sense too, because the OS's copyright shouldn't infect its apps'... apps have to use an OS.

I love not having a pony in the race.

shareme• 15 years ago

only problem the SCO case proved them not copyright-able..

whoops..

ajju• 15 years ago

It's hard to take the author's claims of infringement seriously because of his laughable claim that third party applications such as Angry Birds running on top of Android would have to be open sourced under GPL if actual infringement is found in Android.

FlorianMueller11• 15 years ago

The reason is that Angry Birds is written in C and certainly accesses the Linux kernel, almost certainly using the Bionic library. If that one is GPL'd, Angry Birds has to be GPL'd. GPL copyleft affects derivative works, and compiling a library into your program is a clear case of a derivative work.

anon13856• 15 years ago

I think people are objecting to this rather extreme worse case scenario because the C library can just use the LGPL, there is no situation where it has to be full GPL. (Or else how does glibc get away with being LGPL?)

ajross• 15 years ago

No, no, no. That's wrong. It's the "viral" misinterpretation of the GPL at work. Angry Birds code belongs to Angry Birds' developers, period. They get to decide its license, period. There are no circumstances under which "Angry Birds has to be GPL'd". None.

The issue at hand is whether or not the Angry Birds Android port constitutes a derived work of the kernel (a pretty strained case, IMHO, given that it's a straightforward port of a game from another non-linux platform). If it is, then it can only be distributed under the GPL -- that is, it'd have to be pulled from the market. At no point does it get removed from its owner's control.

CoffeeDregs• 15 years ago

Interesting... Assuming the article is correct in that Google's tool says that no copyrighted information is left, it seems that Google is saying that header files stripped of all of english/whatever-language text and left with only pure code are not copyright-able because it's just code?

FlorianMueller11• 15 years ago

Pretty much. They also threw out a few other elements, but I looked at some of the original header files and the Android equivalents and it was hard to find any difference other than the removal of comments.

babblefrog• 15 years ago

Almost. It's non-copyrightable because it is required for interoperability, and is therefore fair-use under US law.

wnoise• 15 years ago

The argument is that it's just _interface_, which has to be that way for interoperability, so has no "creative content". Code that is actually expressive code in a header file (inline functions, or non-constant macros) could readily spoil this. I have no idea whether the output headers contains more than structure definitions, constant macros, and forward function declarations.

radu_floricica• 15 years ago

This may or may not be true, but what is fundamentally different from the Oracle suit is that the GPL holders take a very pragmatic view of violations. Release the code as GPL, or stop using it, and you're ok. I never heard of a GPL suit involving damages... not even sure it's possible.

Oracle on the other hand wants either to hurt Android, or a (preferably large) piece of the pie.

tonfa• 15 years ago

"The SFC received a default judgment [PDF] against Westinghouse in July for $90,000 in damages and $50,000 to cover costs of the suit."

https://lwn.net/Articles/409303/

JulianMorrison2• 15 years ago

So wait, the grumble is that they extracted function signatures from a header file? What a non-event.

tzs6• 15 years ago

I am at a complete loss as to why no one like Google, or a consortium of smaller embedded system developers or users, have not made a BSD based system available as an alternative to Linux based systems.

Linux has some desktop advantages in terms of package management and perhaps consumer hardware support, but none of these matter to someone seeking an OS for a phone or a TV or a microwave oven and so on.

m0nastic• 15 years ago

The precursor to Android was actually BSD-based instead of Linux-based. I assume that when the Danger guys left to start over with Android, they figured starting from Linux would give them a technical advantage.

teyc• 15 years ago

I suspect Google uses the fear of GPL to bind the handset manufacturers to their platform.

mycroftiv2• 15 years ago

I think the part of the article everyone should make sure to focus on is that Google is doing exactly what Linus says is impermissible. "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." "So you can run the kernel and create non-GPL'd programs [...] BUT YOU CAN NOT USE THE KERNEL HEADER FILES TO CREATE NON-GPL'D BINARIES. Comprende?" - Linus Torvalds quote, taken from the linked article

eli• 15 years ago

An excellent point, though (unfortunately) just because Linus wants the GPL to apply that way doesn't necessarily mean that it does.

As a layman, it seems entirely reasonable that you should be able to inspect the interface of a software product in order to make something compatible with it without your new product counting as a "derived work." If they had read documentation for all the functions rather than parsing the headers through a script would that have made a difference?

Put another way, I'm sure Microsoft asserts that it is impermissible to reverse engineer Windows kernel code, but that doesn't mean they have the power to stop it.

humbledrone3• 15 years ago

What Linus says is impermissible is rather immaterial; he's not a lawyer. What matters is a court's interpretation of the GPL as it applies to the kernel.

Sandman2• 15 years ago

Oh my, oh my, oh my...

Developers of applications using Bionic would only be able to charge (via the Android Market) those customers who don't know what rights they have under the GPL. All others would find ways to download and install those apps on GPL terms, i.e., free of charge.

Mr. Mueller doesn't seem to understand that if something is released under GPL that does not make it automatically free of charge. Just because most GPL software is free of charge, that does not mean that you can't charge for your software if you release it as GPL.

Another common misconception is that if your code is under GPL, you have to give the source code to just about anybody who wants to see it for free. No. Wrong. Only people who have the license for your software can get the source code, they have this right because it is granted to them by the GPL. And if you want to, you can certainly charge for use of this license.

So there is nothing stopping you from releasing your software as GPL, charging for it, and giving the source code to those interested parties that payed for the license to use your software.

FlorianMueller11• 15 years ago

@Sandman, the "oh my, oh my, oh my" part is actually justified as a reaction to some of what you say.

Of course you can try to charge for GPL'd software. But since the GPL requires you to make it available free of charge, there would be arbitrage: people would find where to get it for free, and why would they pay then?

Sandman2• 15 years ago

As I understand it, if you write a piece of software, you're the one holding the copyright. Therefore you decide under which license you will allow people to use your software and whether you want to charge for this use or not (unless the license itself specifically states that you must or must not charge for the use of the software, in which case you must conform to the rules of the license). If you decide that you are going to charge for the use of your software and somebody is using it without paying for it, they are in violation of the license. If you release your software under GPL and decide to charge for it then yes, you have to give the source for free, but only to those people that payed for the license to use the software in the first place.

teach• 15 years ago

The GPL does not require you to make your software available free of charge. It merely states that if someone purchases software from you, that you must also provide the source code upon request.

comex• 15 years ago

I don't get it. The LGPL lets you promote to the GPL, but the GPL does not give any special status to the LGPL; it doesn't even mention it outside of the preamble. Why is going through a LGPL library any different than going through a BSD one?

jcl• 15 years ago

As I understand it, Google is using the header files only to extract "structure declarations, constants, etc." -- i.e. to get the interface right, not to link to kernel source. The question is whether or not this is a copyright violation... If not, then the GPL has no power.

Note that it's possible to use a copyrighted source to reverse-engineer an interface and not have it be a copyright violation: http://en.wikipedia.org/wiki/Clean_room_design#Case_law

I'm hoping this is a lot of fuss over nothing, as there will no doubt be cases in the future where people want to create open-source drop-in replacements for proprietary systems, and if it is ruled that extracting information from header files makes a derivative work, it will be very difficult for them to get the interface right.

jmillikin5• 15 years ago

Oy, this guy again? For those unaware, Florian Mueller has made a mini-career of spreading anti-FOSS and anti-Android propaganda.

  > Google copied 2.5 megabytes of code from more than 700
  > Linux kernel header files with a homemade program that
  > drops source code comments and some other elements, and
  > daringly claims (in a notice at the start of each
  > generated file) that the extracted material constitutes
  > "no copyrightable information".

In the US, APIs are typically considered mere specifications, and cannot be copyrighted. You can copyright a particular encoding of an API (eg, a C .h file), but the API itself can be used by anyone. If APIs could be copyrighted, projects like Wine and Mono would be illegal.

Whether Google's libraries are considered derived works will depend on how the tool works. If it just regexes out all the comments, then the result is probably a derivative work. If it parses the headers and then outputs the API information, the output is probably not a derived work.

  > The GPL's copyleft nature requires all derivative works
  > of a GPL'd program to be made available on the same
  > terms.

Wrong; the GPL requires any derivative works to be under a compatible license. If I copy GPL-licensed code into my BSD-licensed library, none of my code has to be relicensed.

  > If Google is proven wrong, pretty much that entire
  > software stack -- and also many popular third-party
  > closed-source components such as the Angry Birds game
  > and the Adobe Flash Player -- would actually have to be
  > published under the GPL.

Completely and egregiously wrong. Unless these programs are actually copying parts of the kernel into their source, they are not derived works.

Come on, this is software copyright 101. Copyright doesn't propagate from a library to its clients; otherwise, every Windows application is infringing Microsoft's copyrights, every iOS app is infringing Apple's, etc.

  > The only realistic way to fix the problem: replace
  > Bionic with glibc

How would this help? According to the author's reasoning, glibc is also an illegal derivative work of the Linux kernel. Any application which infringes if it uses Bionic will also infringe if linked against glibc.

The rest of the post is a bunch of doomsday scenarios, all built on the incorrect assumption that running proprietary software on a Free kernel/libc is illegal.

arst2• 15 years ago

If I copy GPL-licensed code into my BSD-licensed library, none of my code has to be relicensed.

Yes it does, that's a pretty central feature of the GPL. See section 2.b. of the GPL (v2):

b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

JulianMorrison2• 15 years ago

It hasn't been re-licensed. It's just not lawful to distribute.

jmillikin5• 15 years ago

You forgot the very next paragraph:

These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

In other words, my code remains mine. I still control the copyright to it, and do not have to relicense it.

anon13856• 15 years ago

>In the US, APIs are typically considered mere specifications, and cannot be copyrighted

Linus disagrees that the Linux headers are not copyrightable: http://lkml.org/lkml/2003/12/5/13

Do Google strip out the inline functions? I don't think even the most ardent Google defenders can say that inline functions are not copyrightable.

>If I copy GPL-licensed code into my BSD-licensed library, none of my code has to be relicensed.

If I now want to use your BSD-licenced library surely I am bound by the terms of the GPL, since it includes GPL code. That parts that you wrote are still under the BSD, but the restrictions on use of the overall library will include the GPL terms. Otherwise just inserting a single line of BSD code into a fork of a GPL project would be enough to bypass the GPL.

>Completely and egregiously wrong. Unless these programs are actually copying parts of the kernel into their source, they are not derived works.

So linking proprietary binaries to GPL libraries is legal? Everything I have heard has indicated the opposite, that linking to GPL libraries makes your binary into a derived work (the reason the LGPL exists). I would be very interested in knowing if this is the case or not.

>According to the author's reasoning, glibc is also an illegal derivative work of the Linux kernel

Yes, this issue does seem contradictory.

>all built on the incorrect assumption that running proprietary software on a Free kernel/libc is illegal

It appears to me to be built on the assumption that Linux header files are copyrighted and under the GPL.

Your comment is contradicting the understanding that a lot of people have of the GPL (including presumably Richard Stallman himself, who saw the need to create the LGPL).

tzs6• 15 years ago

> Wrong; the GPL requires any derivative works to be under a compatible license. If I copy GPL-licensed code into my BSD-licensed library, none of my code has to be relicensed.

Wrong. You can copy BSD-licensed code into your GPL-licensed library with no problem, but GPL-licensed code copied to a BSD-licensed library will have problems. GPL-licensed code into a BSD-licensed library prohibits redistributing the resulting work under BSD.

> Completely and egregiously wrong. Unless these programs are actually copying parts of the kernel into their source, they are not derived works.

You've missed the point. If the Google de-copyrightizanator (WTF! Apple's spell check did not flag de-copyrightizanator!) has failed, and the header files Google shipped for third parties to use do in fact contain copyrighted code under GPL, then there may indeed be a problem for third parties. Headers files often contain more than just the specification of an interface (which is probably not copyrightable). They often contain actual code, which is copyrightable. That code could end up in applications, in which case they would in fact have a serious GPL problem.

jmillikin5• 15 years ago

You say "wrong", but then argued something completely different from what I claimed.

I said: "If I copy GPL-licensed code into my BSD-licensed library, none of my code has to be relicensed."

You replied: "GPL-licensed code into a BSD-licensed library prohibits redistributing the resulting work under BSD."

These statements are regarding completely separate concepts.

mycroftiv2• 15 years ago

You use both ad hominem ("this guy again? For those unaware, Florian Mueller...") and a strawman argument ("all built on the incorrect assumption that running proprietary software on a Free kernel/libc is illegal.")

The claim is not that running proprietary software on a free kernel is illegal. The claim is that by linking to Bionic, which may violate the GPL, the proprietary software might become "derived works" of the kernel.

jmillikin5• 15 years ago

That's not ad-hominem; ad-hominem is "this guy is paid to attack Free software, therefore his argument is invalid". Merely pointing out an obvious conflict of interest is not ad-hominem.

The second statement is not a strawman -- that is his actual (implied) argument. Otherwise, the whole thing about Bionic is completely irrelevant. Bionic's license status only matters to client software if licenses are assumed to propagate across the library boundary. If running proprietary software with a Free libc is OK, then a GPL'd Bionic is no risk to proprietary software linked against it.

kwantam2• 15 years ago

According to the author's reasoning, glibc is also an illegal derivative work of the Linux kernel.

The latter part of your statement doesn't follow from the former, since glibc was written from scratch by its GNU authors. If half of glibc headers were just stolen from the kernel tree, your argument might hold water, but they absolutely were not.

glibc is a legal implementation of a Linux-compatible libc. Since it's LGPL, one can legally link non-GPL code against it. The author's suggestion that the only way to make things OK is to switch to glibc is kind of farcical, since it would appear that creating a new implementation of Bionic whose licensing status is on par with glibc would suffice.

anon13856• 15 years ago

Your line of logic is the following: [glibc includes kernel header] + [glibc is legal] -> [including kernel headers in any non-GPL project is legal]

In his comments on this site he has stated that the reason glibc is available under the LGPL is that the headers it uses were added to glibc by the kernel maintainers who held the copyright to them[1][2].

I've no idea if this is true, but it seems to be the crux of the issue, if indeed the headers are covered by copyright as Linux Torvalds believes (unless we are to assume that glibc is also in violation of the GPL). Perhaps somebody familiar with GNU and glibc knows if this is the case.

[1] http://news.ycombinator.com/item?id=2337064 [2] http://news.ycombinator.com/item?id=2336690

rst• 15 years ago

Odd that he doesn't explicitly mention the legal basis for Google's claim that this stuff is non-copyrightable. Which is this:

Copyright protects the expression of an idea, not the idea itself. So, the courts have held, if you don't have any choice over how to express something, it isn't subject to copyright protection. In particular, if a particular mapping from names to magic numbers is necessary in order for standard-conformant programs to operate at all (as in the mappings specified by <errno.h> and <signal.h>, which came up in the SCO litigation), that stuff isn't copyrightable.

So, Google's saying, they've written tooling to explicitly drop all the expressive elements, leaving the bare, functional, non-copyrightable bones --- which they don't need legal permission to use, from Linus or anyone else.

This is, I guess, why Mueller thinks it's a big deal that the processed files still include inline functions --- if there's another way to write the function which does the same thing, then there is an expressive choice in writing it, which would be subject to copyright protection.

But if userland code has no reason to want to run particular inline functions in kernel header files, then Google has an easy remedy: just ditch 'em --- or rewrite the few that matter, and ditch the rest.

So, this really doesn't look like a big deal...

aidenn0• 15 years ago

I haven't looked at the code in question, but there are some inlined functions. If there aren't too many and the functions are very short, then it's probably fine.

Just copying the #defines and stuff is almost certainly okay since you would need to duplicate all of that to call into the kernel.

There is precedent for something like this: Phone books have been copied, proved to have been copied (there were fake entries in the original) and it was determined not a copyright violation.

tzs6• 15 years ago

A couple quick points about copyright and header files.

1. It is well established in US copyright law that elements necessary to interoperate with something aren't copyrightable. So, for instance, the function signatures and probably function names (if names are necessary in order to make the call) of an interface would not be copyrightable. Same for structures used in the interface.

This has been fairly extensively litigated. It arises when you have, for instance, someone trying to make an unauthorized third party game for a video game system, or someone trying to write a plug-in for someone else's closed program.

2. Header files often contain more than just the bare elements necessary to interface to something. They often contain macros that expand to code, comments, maybe even implementations of small inline functions. There is plenty in header files that can be copyrighted.

So, depending exactly on how Google produced its header files, they may be in the clear or they may have made a big mistake.

cschwarm• 15 years ago

According to Naughton's analysis [1], your case 2 applies, and there's also the consideration that the whole constitutes an expression, and is therefore copyrightable.

It's worth reading the original instead of the above linkbait.

[1] http://www.brownrudnick.com/nr/pdf/alerts/Brown%20Rudnick%20...

haberman• 15 years ago

The Linux kernel specifically allows programs to make system calls into the kernel without being GPL. From http://lxr.linux.no/linux+v2.6.38/COPYING

    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.

The Linus quote on the other hand, pertains to binary modules -- ie. binaries that are linked into kernel-space and use non-system-call APIs.

Since user programs are specifically exempt from being GPL'd, I cannot see how you could possibly make the argument that Angry Birds is somehow affected, unless it is being linked in as a kernel module.

What is in these headers? If it is just definitions that are required for making system calls, I would expect that all of this falls under the exception above.

himmele• 15 years ago

would it be possible to relicense the output of google's tools (the rewritten kernel header files) to LGPL with the permission of the kernel developers (just like glibc or uclibc do) and build a separate library out of this? This library would consist mainly of header files. And this library can then be linked against the rest of bionic whereat bionic could keep its current license. Would this be ok?

Google's Android faces a serious Linux copyright issue

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