Android is on fire

Because Linux is free software and belongs to no-one, it is often assumed that Linux is “surrounded by legal uncertainties,” but Linux is no more or less prone to legal uncertainties than any other software. Richard Hillesley looks at the latest attempt to cast fear, uncertainty and doubt around the GPL and the Linux kernel…

The Linux kernel is released under the GPLv2. The GPL was devised as a means of enhancing and protecting the freedoms of the user, the coder, and the code.

The GPL encourages freedom by granting the user a number of rights and responsibilities. The user has the right to use the software, to have access to the source code, and to change, copy and give the code away. As every Linux user knows, the only restriction imposed by the GPL is that the user must preserve the licence, and pass on the same rights, unimpaired, when the software is sold or given away to others, which means giving reasonable access to the source code, and any changes that have been made to the code.

The Linux kernel is free software and belongs to no-one, and free is hard to compete with. Since the beginning opponents and competitors have raised scares around Linux and its ownership, and have sought to question the legitimacy of the software and its licence.

Recently Android has moved into the spotlight. The reasons are clear. As Google’s chief legal officer, David Drummond, puts it: “Android is on fire. More than 550,000 Android devices are activated every day, through a network of 39 manufacturers and 231 carriers.” Android is a serious competitive threat to the iPhone and Windows 7, and the response has been a “hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.”

At the same time claims have been made that cast doubts on the GPL and its implementation by Android manufacturers, suggesting that ‘thousands’ of device manufacturers may not be complying with GPLv2′s injunction to make the source code available, and that this lays them open to future legal claims by the thousands of developers who have contributed code to the Linux kernel or relevant sections of the Android ecosystem. The effect of these claims is to sow fear, uncertainty and doubt among users and manufacturers about Android and the efficacy of the GPLv2.

There is a theoretical logic to these claims. A rogue developer could claim that his or her code licensed under the GPLv2, and included in the Linux kernel, has been misused because the source code has not been made available, and might hope to get this through the courts, assuming a manufacturer has been unwilling to comply. In practice, this is not going to happen. There have always been compliance issues with OEMs and the GPL, and they have usually been resolved without much fuss, and the evidence that any major Android device manufacturer has not complied has not been produced.

The relevant section of the licence says “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.” The claim is that any failure to have complied with the licence will automatically terminate the right of the manufacturer to use Android. In practice, the solution to non-compliance issues is usually a phone call (to or from the Software Freedom Legal Center) away.

As a Slashdot contributor noted, “in order for this to be ‘proven’ in a court of law, a GPLv2 licence holder would have to sue a company that used Android, failed to comply with the GPLv2, then came back into compliance and then started releasing Android again without said licence holder’s consent,” which is an unlikely sequence of events in any court of law.

Edward Naughton, the lawyer from whom these claims arose, has form. He made other claims against Android and GPL compliance in March this year, and has worked with Microsoft in the past. On that occasion, Eben Moglen of the software Freedom Law Centre, and a former columnist for this magazine, remarked “I would say that the issue is a little less complex and a little less dire than it might seem on first acquaintance, while the facts are not quite as simple and therefore the narrative not quite as compelling as one might be led to believe.”

The same may be said of the more recent claims. Meanwhile, the Free Software Foundation points out that the problem would not exist if the kernel developers had retained the option to update the kernel licence framework to the GPLv3.