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Does Android Have a Linux Copyright Problem?

timothy posted more than 3 years ago | from the ask-the-patented-magic-8-ball dept.

Android 292

An anonymous reader writes "TheRegister says Google's attempt to purge copyright from header files has put mobile developers at risk of being forced to reveal their own source code, according to legal experts. This time it's not patents or Android's reinterpretation of Java that's causing problems, but the Linux code that compiles down into Android itself. The discussion started with a Huffington Post article by IP lawyer Edward Naughton, who has serious doubts about Google's approach to the Linux kernel header files. He in turn links to copyright law professor Ray Nimmer's blog post on disclosure risks on copyleft platforms. And IP blogger Florian Mueller believes Google faces a serious Linux copyright issue."

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Great! (-1, Offtopic)

tuxrocks4 (2018920) | more than 3 years ago | (#35519402)

These fuckers ought to reveal the source. What is that source, a CS award winning algorithm? Its just a bunch of a crap that is just necessary to talk to hardware, and they are just assholes for not providing it Look how HTC [wordpress.com] doesn't even reveal kernel source unless threatened with lawsuits.

Re:Great! (0)

Anonymous Coward | more than 3 years ago | (#35519470)

GOATSE TROLL. DO NOT CLICK!

Re:Great! -- GOATSE ALERT (-1)

Anonymous Coward | more than 3 years ago | (#35519476)

GOATSE WARNING

oh god...captcha is conjugal. Dammit....my brain...

*BSD (1)

Anonymous Coward | more than 3 years ago | (#35519404)

Would have saved them a lot of this trouble.

Alternatively, they could just release the source for the core...

Of course, netcraft would confirm it to be a dead platform...

Re:*BSD (2)

Shikaku (1129753) | more than 3 years ago | (#35520036)

Problem, Google?

Google don't care (-1)

Anonymous Coward | more than 3 years ago | (#35519466)

Google doesn't give two shits about FOSS. I like it how some people are shocked by this revelation.

Re:Google don't care (1)

Anonymous Coward | more than 3 years ago | (#35519518)

But...but...they use Linux!!! That makes them a FOSS company. Disregard that they internally use a proprietary fork of the kernel! Disregard their proprietary fork of Ubuntu!! Disregard the fact that their file system, page rank algorithm, and almost all of their software such as Gmail, Google Earth, Picassa, etc are proprietary!!! THEY USE LINUX!!!!!!!!!!eleventyone

Re:Google don't care (2, Insightful)

Anonymous Coward | more than 3 years ago | (#35520206)

Who cares what Google uses internally? I can modify all the GPL software I want at home and not release the changes, and so can all companies. There's nothing illegal or immoral about it.

I wish their major Android apps were open sourced, but that's a different matter.

NO... (4, Insightful)

Anonymous Coward | more than 3 years ago | (#35519484)

No real risks, just header files which are not even copyrightable and things explicitly permitted by the lesser (lib) GPL licence anyway, noting to read here just Florian Mueller posting as anonymous for the FUD...

Re:NO... (4, Insightful)

poetmatt (793785) | more than 3 years ago | (#35519614)

yup. The real question is "Does Florian Mueller have a open source problem?" and the answer is yes.

Re:Does Florian Mueller.... (2)

sconeu (64226) | more than 3 years ago | (#35519696)

You need to ask that in the "Geico guy" voice.

Re:NO... (0)

Anonymous Coward | more than 3 years ago | (#35520024)

Yep, that's exactly what I thought. Plus the editors keep putting his crap on the main page.

Copyright is complex (1)

jaymz2k4 (790806) | more than 3 years ago | (#35519496)

And this just goes to show just how hard it is for even the best minds in the industry to grasp.

Re:Copyright is complex (0)

Anonymous Coward | more than 3 years ago | (#35519570)

Not really.

Take someone else's code, run it through a script, and claim it's your own = evil.

Don't need to be a copyright genius to figure that one out.

Re:Copyright is complex (5, Insightful)

Anonymous Coward | more than 3 years ago | (#35519904)

Well you're obviously not a copyright genius, otherwise you'd know that header files usually only contain structural information about functions that doesn't contain the level of creativity required to clear the threshold for copyright protection.

Are contents pages of books copywriteable? (3, Insightful)

EdgeyEdgey (1172665) | more than 3 years ago | (#35520086)

Seems like a good analogy.

Of course they do! (0)

VGPowerlord (621254) | more than 3 years ago | (#35519558)

Google should know very well by this point that you can't just copy GPL code and change the license on it.

The list of licenses compatible with the GPL is just that: A list of licenses of which have terms compatible with the GPL terms, so you can use code licensed under those licenses in your GPL projects.

The GPL is compatible with no other licenses, even its own later versions, unless explicitly named by the copyright holder. The LGPL is almost the same, but also allows you to use LGPL code in GPL projects (in addition to the linking permission).

This isn't random conjecture by the ill-informed (2, Interesting)

Infonaut (96956) | more than 3 years ago | (#35519566)

Nimmer is the real deal. He wrote the definitive treatise on copyright law. It is cited in more judicial opinions than any other scholarly work on the subject. That doesn't mean Google is necessarily screwed, but it certainly means this is a serious matter.

Despite the persistent belief that copyleft and the GPL are antithetical to copyright law, nothing could be further from the truth. The GPL relies on copyright law; without copyright there could be no GPL. Google's attitude seems to be that copyright is merely a hassle, an obstacle to be routed around. Even if they are not found to be legally in violation of the GPL, they obviously Bionic with the deliberate intent of routing around it.

If openness is a virtue, what is sort-of-openness?

Re:This isn't random conjecture by the ill-informe (1)

just_another_sean (919159) | more than 3 years ago | (#35519656)

If openness is a virtue, what is sort-of-openness?

Pure self interest?

Re:This isn't random conjecture by the ill-informe (0)

Anonymous Coward | more than 3 years ago | (#35519658)

On the other hand, nobody gives a shit what Florian thinks.

Re:This isn't random conjecture by the ill-informe (4, Informative)

starfishsystems (834319) | more than 3 years ago | (#35519754)

[Ray] Nimmer is the real deal. He wrote the definitive treatise on copyright law.

You're thinking of David Nimmer [wikipedia.org] . Ray Nimmer has lots of credentials too, but he's a different guy.

Re:This isn't random conjecture by the ill-informe (0)

Anonymous Coward | more than 3 years ago | (#35519778)

The GPL relies on copyright law; without copyright there would be no need for GPL.

FTFY

Re:This isn't random conjecture by the ill-informe (1)

Anonymous Coward | more than 3 years ago | (#35519896)

That's really not true. Without copyright there would be no need for the BSD family of licenses.
But in a copyright-free world how do you make people distribute the source to their derivative works?

Re:This isn't random conjecture by the ill-informe (1)

martyros (588782) | more than 3 years ago | (#35519934)

The GPL relies on copyright law; without copyright there would be no need for GPL.

Not so. The whole point of the GPL is to implement Richard Stallman's "coined" ethical maxim, that it's immoral to give someone a program but keep the source code from them. That's why the GPL doesn't say you have to give the source code to everyone; you only have to give the source code to those to whom you have distributed a binary. (Of course, they may give it to everyone, so you might as well do it yourself.)

Without copyright, you'd just have Public Domain -- anyone could just take the code, improve it, then sell it as a proprietary product; but no one would be forced to give back to the community, or even give credit where it's due (as is required by BSD licenses).

Re:This isn't random conjecture by the ill-informe (1)

arose (644256) | more than 3 years ago | (#35520174)

But everyone would be free to copy, modify and disassemble the proprietary product as well.

Re:This isn't random conjecture by the ill-informe (0)

Anonymous Coward | more than 3 years ago | (#35519790)

obviously Bionic? I don't get it

Different approaches, same result (1)

srussia (884021) | more than 3 years ago | (#35519828)

>Despite the persistent belief that copyleft and the GPL are antithetical to copyright law, nothing could be further from the truth. The GPL relies on copyright law; without copyright there could be no GPL. Google's attitude seems to be that copyright is merely a hassle, an obstacle to be routed around.

GPL uses a "judo" approach using copyright against itself. Google does a GPL-based "end run". Both work to hasten the collapse of copyright under its own weight.

Re:Different approaches, same result (1)

blair1q (305137) | more than 3 years ago | (#35519980)

Copyright is not going to collapse, and it has no weight. It's a concept, and it has to be interpreted, and interpretation takes no force at all.

If anything, it's the GPL that will collapse when someone interprets it as self-inconsistent and legally void, regardless of anyone else's interpretation of it.

Re:Different approaches, same result (-1)

Anonymous Coward | more than 3 years ago | (#35520030)

Copyright monopoly law is of course ultimately going to collapse, evil bullshit that it is. There's a generation of people growing up now with no respect for copyright. There's pirate party members getting into power in europe and africa. Copyrights are going away within decades, get used to it.

Re:Different approaches, same result (1)

blair1q (305137) | more than 3 years ago | (#35520184)

You either know nothing about politics and law enforcement, or you know less about money.

Re:Different approaches, same result (1)

ron_ivi (607351) | more than 3 years ago | (#35520072)

GPL uses a "judo" approach using copyright against itself.

No it doesn't.

It's a licence to a copyrighted work in exactly the same way any other software license is.

A Windows OEM license tells you "only run this software on this particular approved brand of machine", just like the GPL tells you "only use these header files with these other approved software packages".

If both cases, you get to use it in exactly the ways the licenses permit.

Re:Different approaches, same result (2)

h4rr4r (612664) | more than 3 years ago | (#35520202)

Nope, EULAs are use licenses, GPL is only impacts copying of the software. You can feel free to use GPL software in your private software and never give up your source so long as you never make copies of that software and distribute them.

Re:Different approaches, same result (0)

Anonymous Coward | more than 3 years ago | (#35520218)

No, it doesn't.
Copyright preserves the author/holder's droits d'auteur, which in turn allows the holder to decide who can produce derivative works and under which terms. The GPL does exactly that. It's exactly how copyright is supposed to work, and the GPL does not do anything out of the ordinary (even the viral propagation of GPL isn't out of the ordinary, it isn't really different from copyright assignment, and a copyright holder is well within his or her rights to mandate that despite giving someone a license to produce a derivative, there be a condition that no derivative work of the derivative work may be produced). Truth is that copyright by design allows for pretty much any condition that doesn't break laws on trample on fair use, with few exceptions (Notably, in French Civil Code jurisdictions, you cannot place restrictions on that which is granted or not expressly forbidden by the Book of Obligations).

Copyright isn't designed necessarily to lock people out, it's used to decide who is allowed in, everyone uses it that way, and the GPL is no exception. The GPL does nothing to cause copyright to collapse under its own weight. But if you want to look at it as a device for locking people out, the GPL does that, too(it locks out people who don't distribute the code, as well as all that junk about patents and what not in V3).

It helps when you understand copyright.

Re:This isn't random conjecture by the ill-informe (1)

cfulmer (3166) | more than 3 years ago | (#35519992)

Uh.... Different Nimmer. This is Ray Nimmer. The guy who wrote the treatise was Melville Nimmer (now deceased) and the treatise is maintained by his son, David Nimmer.

Re:This isn't random conjecture by the ill-informe (2)

mhelander (1307061) | more than 3 years ago | (#35519996)

"If openness is a virtue, what is sort-of-openness?"

Virtuel?

Correction! (1)

Infonaut (96956) | more than 3 years ago | (#35520162)

As several of you have noticed, I was thinking of the wrong Nimmer. Sorry, folks! Please mod my original post down -1 Stupid.

Re:This isn't random conjecture by the ill-informe (0)

Anonymous Coward | more than 3 years ago | (#35520294)

"Nimmer is the real deal. He wrote the definitive treatise on copyright law."

So, Nimmer is the guy that needs to be publicly executed for the F**ked up copyright laws?

nvidia and ati drivers (0)

Anonymous Coward | more than 3 years ago | (#35519572)

does this mean nvidia has to open source its graphics drivers? or better ati has to do it too?

I really would like up to date drivers for my old now unsupported ati graphics card.

Re:nvidia and ati drivers (0)

Anonymous Coward | more than 3 years ago | (#35519704)

For the millionth time, they're not going to open source their drivers... If they're forced, they'll simply stop supporting Linux.

Re:nvidia and ati drivers (1)

h4rr4r (612664) | more than 3 years ago | (#35520324)

No, they would not. They make those drivers for the render farms running linux that buy those cards by the truckfull. These customers don't currently care if the driver is closed so it stays that way. Nvidia linux driver customers are those folks not us geeks.

Seems simple to me (0)

Anonymous Coward | more than 3 years ago | (#35519580)

If you don't want people looking at your code, don't contribute to an open source project.

Actually I think that Google is right (-1)

tuxrocks5 (2018922) | more than 3 years ago | (#35519582)

There are few precedents in this area, and really headers that contain just macros/prototypes/etc aren't copyrightable.
Look for example at the SCO saga [wordpress.com]

Re:Actually I think that Google is right (-1)

Anonymous Coward | more than 3 years ago | (#35519734)

Goatse idiot here, tuxrocks4 is obviously obsessed with anuses and should be avoided at all costs (unless of course you're into that sort of thing, not that there's anything wrong with it and all that).

Re:Actually I think that Google is right (1)

radtea (464814) | more than 3 years ago | (#35519844)

There are few precedents in this area, and really headers that contain just macros/prototypes/etc aren't copyrightable.

Curiously, companies like MicroChip disagree with you on this: they use a gcc-based toolchain for their chips, but claim their copyright interest in their header files allows them to distribute it with a license that forbids you from using their header files with any other compiler, including a modified version of their own compiler.

So there are companies out there basing a significant part of their software revenue on precisely the opposite of the claim you are making. They may be wrong, but the claim is not on the face of it implausible.

What the heck? (1)

gstoddart (321705) | more than 3 years ago | (#35519586)

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".

So, take a bunch of copyrighted (or, copylefted) code, stripping out the comments, and then claim there's no copyrightable information???

Seriously? How can they even attempt to claim this. This seems to be about as blatant as you can get.

I'll be curious to see how this plays out, and if this might lead to the GPL being upheld in a court.

Re:What the heck? (4, Informative)

poetmatt (793785) | more than 3 years ago | (#35519654)

This won't play into a goddamn thing. It's headers. read the first post. Headers are not copyrighted. This seems to be about as blatant a lack of comprehension you can get.

Re:What the heck? (1)

just_another_sean (919159) | more than 3 years ago | (#35519764)

Indeed, google "SCO linux headers" or "SCO errno.h".

Re:What the heck? (2)

radtea (464814) | more than 3 years ago | (#35520022)

Indeed, google "SCO linux headers" or "SCO errno.h".

So you conclude that because some headers are not subject to copyright, no headers are subject to copyright?

The phone book contains no copyrightable information. Does that mean no book is subjec to copyright?

Re:What the heck? (3, Insightful)

just_another_sean (919159) | more than 3 years ago | (#35520100)

If all a header file does is describe an interface then no, I don't think it should be copyrighted. The interface is there to promote
interoperability and if headers were subject to copyright we might have Linux but it damn well would not work as a near perfect
drop in replacement for Unix.

If people are putting code in headers that are worthy of copyright my first reaction would be "they're doing it wrong".

All phone books are uninteresting. Some books are interesting. All header files (IMHO) should be uninteresting.

IANAL - I might be wrong but I trust my own knowledge over anything Florian has to say on the subject.

Re:What the heck? (1)

Drathus (152223) | more than 3 years ago | (#35520208)

So you conclude that because some headers are not subject to copyright, no headers are subject to copyright?

The phone book contains no copyrightable information. Does that mean no book is subjec to copyright?

Your analogy isn't quite right. Headers are headers, but not all books are phone books.

Correct would be like "AT&T's phone book contains no copyrightable information, so one could assume that Verizon's doesn't either."

Re:What the heck? (4, Interesting)

gstoddart (321705) | more than 3 years ago | (#35519782)

This won't play into a goddamn thing. It's headers. read the first post. Headers are not copyrighted. This seems to be about as blatant a lack of comprehension you can get.

Well, from the last article linked from the summary:

Linus Torvalds himself has clearly rejected the idea of using the original Linux kernel headers in programs that aren't licensed under the GPL. In a posting to the official Linux kernel mailing list, he made the following unequivocal statements:

        "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?"

Now, I have no idea if Linus making this assertion is a fully valid legal opinion, but he's sure as hell under the impression that they're certainly copyrighted.

And, the second link in the summary says:

Recently, Ray Nimmer, a well-known copyright law professor, observed that there could also be a problem with the way Google used some key Linux software code, called kernel header files, to create a vitally important element of Android. In fact, the way that Google used these files creates a legal quandary for manufacturers of Android devices and many developers writing code and applications for those devices.

So, I'm not entirely convinced that your assertion that the header files aren't copyrighted is actually true.

Most of these articles seem to be saying that this quite likely is a violation of copyright.

Re:What the heck? (2)

poetmatt (793785) | more than 3 years ago | (#35519842)

Most of these articles also cite Florian Mueller or a legal guy saying it's a legal analysis with a disclaimer that says "THIS IS NOT LEGAL ANALYSIS". It's not a coincidence.

As another commenter noted, Indeed, google "SCO linux headers" or "SCO errno.h".

you'll see what this is about, and the answer is zero.

Re:What the heck? (3, Interesting)

Desler (1608317) | more than 3 years ago | (#35519966)

So, I'm not entirely convinced that your assertion that the header files aren't copyrighted is actually true.

It's not an assertion. It's backed up by case law such as the rulings of SCO v IBM where one of IBM's central claims against SCO with respect to SystemV header files like ERRNO.H is that they aren't copyrightable.

Re:What the heck? (3, Interesting)

Raffaello (230287) | more than 3 years ago | (#35520128)

IBM's claim, which was upheld, what that those specific headers were not copyrightable because they were in the public domain. IBM did not claim that header files in general are not copyrightable.

Re:What the heck? (0)

Anonymous Coward | more than 3 years ago | (#35519950)

Who says the headers are not copyrighted?

Linus and the other authors, who put copyright notifications in them, seem to think they are.

In any case Google has a problem.
If they take someones work, and remove the copyright information and claim that it isn't protected by copyright there are 2 issues.
1. They might be legally wrong.
2. They might be morally wrong, even if it's legal, it clearly seems "evil" to take someones work, modify it and say that the copyright restrictions they attached to it aren't valid.

Re:What the heck? (2)

Desler (1608317) | more than 3 years ago | (#35520010)

Who says the headers are not copyrighted?

IBM did in SCO v IBM. The court apparently accepted that argument and thus established case law precedent. This is just one example.

Re:What the heck? (0)

Raffaello (230287) | more than 3 years ago | (#35520188)

IBM's claim in their case v SCO, was that those specific headers were not copyrightable because they were in the public domain. IBM did not claim that header files in general are not copyrightable.

Re:What the heck? (2)

MikeyO (99577) | more than 3 years ago | (#35519962)

The majority of the linux kernel headers ARE copyrighted. Look for yourself. Perhaps you are trying to make a claim that "headers are not copyrightable", but that would be crazy. Perhaps google is doing this with the idea that "although the headers are copyrightable and people are claiming copyright on them, after you strip all the comments from the files, what you are left with is no longer copyrightable". I'm sure you could find people on both sides of that argument.

Re:What the heck? (1)

Desler (1608317) | more than 3 years ago | (#35519998)

Perhaps you are trying to make a claim that "headers are not copyrightable", but that would be crazy.

So you think IBM was also crazy to argue that back in SCO v IBM where that argument was held up by the court?

Re:What the heck? (2)

radtea (464814) | more than 3 years ago | (#35520142)

So you think IBM was also crazy to argue that back in SCO v IBM where that argument was held up by the court?

That ruling applied to the header files in question, which were not the same header files in the present case, as I understand it. While some header files may not be copyrightable, it does not follow that all are not.

Re:What the heck? (1)

MikeyO (99577) | more than 3 years ago | (#35520168)

I don't believe that IBM made the claim that "headers are not copyrightable". I believe they made claims like "this specific set of files does not contain copyrightable information", which is much different than "headers are not copyrightable". Its not like copyright law has any exception for header files

Re:What the heck? (2)

Raffaello (230287) | more than 3 years ago | (#35520216)

This argument was not held up in court, because it was never made. IBM argued correctly, and the court agreed, that the specfic headers in question were not copyrightable because the were in the public domain. IBM did not argue, nor has any court ruled AFAIK that headers in general are not copyrightable. Hence the potential legal problems for android developers.

Re:What the heck? (0)

Anonymous Coward | more than 3 years ago | (#35520074)

The comment ARE copyrightable. So the full Linux header is copyrighted. The "derived" version might not be, as it only contains the "Factual" interface needed for interaction.

Re:What the heck? (4, Insightful)

idontgno (624372) | more than 3 years ago | (#35519978)

Ah. Concise. To-the-point. Quite possibly completely wrong.

Read and learn. [ipinfoblog.com]

Actual practitioners of the law, people who don't have to say "IANAL" like you obviously should have, say that the answer is unsettled. There is precedent that header files, in general, may be copyrightable. Header files that express APIs, perhaps less so, because the API itself is not copyrightable. (But again, the idea of a big white whale and and obsessive whaler hunting each other isn't copyrighted, but I'm pretty sure Moby Dick certainly was.

But let me put your central assertion to the most obvious test. I write the Great American Novel. It's an awesome novel. It's breathtaking, ground-breaking, and lots of other "aking" things. But I'm eccentric. So I write it entirely as a C++ comment block, and in a file called "GreatAmericanNovel.hpp".

Why isn't it copyrighted, again?

Re:What the heck? (4, Insightful)

arose (644256) | more than 3 years ago | (#35520230)

If the rest of "GreatAmericanNovel.hpp" describes an API and the comments are stripped, what creative work is left?

Re:What the heck? (1)

h4rr4r (612664) | more than 3 years ago | (#35520278)

That novel would be in the comments, it would not merely describe an interface. That novel would also be creative not merely a collection of facts.

Re:What the heck? (4, Interesting)

just_another_sean (919159) | more than 3 years ago | (#35520340)

OK, I am one of the IANAL guys spouting off about headers not being protected by copyright but you definitely raise a good point. So lets assume there are many comments in the header files in Linux, some useful, some funny, some coming close to the greatest written piece ever. I'll grant that those elements in the file are subject to copyright.

Now, back to your example, if the only thing in your header file is the comment itself which contains this fabulous piece of writing and the fact that you completed it on 3/18/2011* and I strip it out the writing, leaving only the date completed (a fact), is the header file still subject to copyright protection?

The point I'm trying to make is that Google claims (right or wrong, I don't know, I have not seen the files) that they stripped out everything but the sections of the header that describe the interface into the Linux kernel. Linux on the other hand copied some of this data from BSD and ATT SYSV header files claiming all along that this was needed for interoperability. A court of law held that IBM could do the same thing with regards to Linux and SCO could not claim protection over those files. I agreed with that then and I agree with it now; assuming Google did a thorough job of scrubbing anything out of the files that was worthy of copyright protection.

* Happy Saint Patrick's Day everyone!

Re:What the heck? (0)

blair1q (305137) | more than 3 years ago | (#35520130)

I missed something. How are headers not copyrighted? Because when I learned C and C++ and a dozen other languages back in precolombian times, headers weren't magical, they were code that you #included into other code files, which had the effect of placing an exact copy of those files in the intermediate code file, causing them to be compiled as the code they are.

If I take all of the source code of Linux and change every .c file thusly:

$ mv foo.c foo.new.h
$ cat > foo.c
#include "foo.new.h"
^D
$ y | /usr/local/bin/laughmyassoff

does that now mean that I have a 100% un-copyrightable copy of Linux?

Of course not. Whoever made the decision that header files are not copyrightable is a legal buffoon, probably due to having appointed a luser instead of a wizard as "special master".

Re:What the heck? (2)

Mr. Slippery (47854) | more than 3 years ago | (#35519796)

So, take a bunch of copyrighted (or, copylefted) code, stripping out the comments, and then claim there's no copyrightable information???

Header files implement an interface. That interface is a fact, not subject to copyright.

The fact "strcpy takes as arguments two character pointers, and returns a character pointer", is not copyrightable. This does not change if I express it in C as "char *strcpy(char *d, const char *s);"

A minimal C or C++ header file is just a collection of such facts.

Re:What the heck? (3, Insightful)

samjam (256347) | more than 3 years ago | (#35519990)

Header files generally specify an interface, the libraries implement the interface.

However header files can implement some of the interface by use of inline functions and macros.

As has been hinted, these are more likely to be subject to copyright as they are more than a minimal specification required for interoperability.

Re:What the heck? (4, Insightful)

Raffaello (230287) | more than 3 years ago | (#35520018)

Header files implement an interface. That interface is a fact, not subject to copyright.

The fact "strcpy takes as arguments two character pointers, and returns a character pointer", is not copyrightable. This does not change if I express it in C as "char *strcpy(char *d, const char *s);"

A minimal C or C++ header file is just a collection of such facts.

The point Nimmer, an acknowledged authority on IP law, makes is that when you aggregate such "facts" the resultant text, essentially becomes an expressive description of how a whole system works, and therefore is copyrightable. Otherwise one could argue that each individual word in a book is such a "fact," and that copying a book is just copying a series of facts and therefore not a copyright violation.

Whether a work is copyrightable is a matter of examining the whole work in the context of its use, not just determining that individual lines are not copyrightable and concluding that the whole work is therefore not copyrightable.

So no, it is not yet a settled matter of law that header files are not copyrightable.

Re:What the heck? (0)

Anonymous Coward | more than 3 years ago | (#35520322)

A minimal C or C++ header file is just a collection of such facts.

A header file may also contain macros and inline function definitions.

Just saying. Personally, I don't believe in copyright anyway.

Re:What the heck? (1)

Anonymous Coward | more than 3 years ago | (#35519946)

How they can attempt to claim this seems pretty ibvious....

While this statement is not exactly accurate it's mostly true to say facts/data are not copyrightable. Google is using an application to extract the necessary constants/values (the non-copyrightable data/facts) from the creative expression which is the header files.

Since I believe what they did was lawful, as apparently does Google, and you believe it's not, as apparently others also do not, it demonstrates it's certainly not as cut and dry as your comment would seem to imply.

Hey!!! Be nice guys!! (0)

Anonymous Coward | more than 3 years ago | (#35519590)

This is Google we are talking about, not Apple.

GPL (1)

awshidahak (1282256) | more than 3 years ago | (#35519620)

Isn't Linux covered by the GPL? Also, doesn't the GPL require that you keep the copyright information in the source code? Maybe I'm just slightly confused, but at any rate, Google should not be scared to show the source code.

Re:GPL (1)

shutdown -p now (807394) | more than 3 years ago | (#35519940)

The code in question are header files, not actual running code (i.e. the binary compiled doesn't really contain any machine instructions produced from those files). Whether and how GPL applies here is an interesting question.

Re:GPL (1)

idontgno (624372) | more than 3 years ago | (#35520178)

the binary compiled doesn't really contain any machine instructions produced from those files

You're forgetting preprocessor macros, which often DO produce compiled code. And also, comments, which are the expressive and creative products of the mind of the author. (Of course those are copyrighted; O'Reilly made an entire industry publishing and selling copyrighted books full of exactly the same kind of information.)

So... headers aren't copyrighted, unless they are?

Re:GPL (1)

thePowerOfGrayskull (905905) | more than 3 years ago | (#35520268)

The copyright would be on the content of the files (even comments), not executable code vs- not, wouldn't it?

the core of the issue (4, Insightful)

davek (18465) | more than 3 years ago | (#35519632)

From TFA:

Google took a novel and quite aggressive approach to developing a key component of Android -- the Bionic Library. That library, a type of C Library, is used by all application developers who need to access the core functions of the Linux operating system. Google essentially copied hundreds of files of Linux code that were never meant to be used as is by application developers, "cleaned" those files using a non-standard and questionable technical process, and then declared that the code was no longer subject to the GPLv2

That "technical process" looks like it refers to an automated filter that it ran the standard Linux header files through, resulting in part of the API for the non-GPL Bionic Library used in application development. One reading of copyright law could determine that the Bionic Library is a direct derivative of the Linux Kernel and therefore must be GPLv2 and open source. This library is essential for Android application development, therefore it would become legally impossible to develop a closed-source Android app.

Personally, my reading of GPLv2 tells me that simply including GPLv2 header files does not mean that your application must also be GPLv2 (otherwise a large part of the embedded market simply wouldn't exist). So I'm marking this one down as FUD.

Re:the core of the issue (1)

gstoddart (321705) | more than 3 years ago | (#35519690)

Personally, my reading of GPLv2 tells me that simply including GPLv2 header files does not mean that your application must also be GPLv2 (otherwise a large part of the embedded market simply wouldn't exist).

I think if a large part of the embedded market is using GPL'd headers, they're likely in direct violation of the license and know it.

How is directly copying it not a derivative work?

Re:the core of the issue (0)

Anonymous Coward | more than 3 years ago | (#35519744)

When what you directly copy doesn't meet the minimum standards for being protected by copyright? If you believe that Google is wrong here then that means you believe that SCO is right.

Re:the core of the issue (1)

gstoddart (321705) | more than 3 years ago | (#35519958)

When what you directly copy doesn't meet the minimum standards for being protected by copyright?

Truthfully, I've never really understood what the threshold is for something you can copyright.

If you believe that Google is wrong here then that means you believe that SCO is right.

I'm not sure that anybody ever ruled that header files aren't copyright-able ... I think it was determined that SCO never owned the copyright in the first place, and therefore didn't have any legal standing.

Over the (many) years of SCO, I've become lost in the legal arguments. I honestly have no idea if this is a violation or not. But, the gist of the articles is that at best this is dubious, and at worst, it's a blatant copyright violation.

Re:the core of the issue (0)

Anonymous Coward | more than 3 years ago | (#35519814)

It may be derivative, but that issue is moot if headers aren't copyrightable. See the SCO v. IBM saga for precedent. Hell, I might even dare to say many core Linux headers are derivative of earlier Unixes themselves, or are at least similar enough to invite copyright trolls like SCO to do their thing.

Re:the core of the issue (1)

LetterRip (30937) | more than 3 years ago | (#35519974)

That "technical process" looks like it refers to an automated filter that it ran the standard Linux header files through, resulting in part of the API for the non-GPL Bionic Library used in application development. One reading of copyright law could determine that the Bionic Library is a direct derivative of the Linux Kernel and therefore must be GPLv2 and open source. This library is essential for Android application development, therefore it would become legally impossible to develop a closed-source Android app.

Personally, my reading of GPLv2 tells me that simply including GPLv2 header files does not mean that your application must also be GPLv2 (otherwise a large part of the embedded market simply wouldn't exist). So I'm marking this one down as FUD.

As pointed out above - header files are likely not copyrightable in the US.

Also something that violates the GPL does not mean that the remedy is to make any work that violates the copyright of a GPLed work also GPLed. If you violate the GPL, then it terminates your right to distribute and makes you a copyright violator - the remedy for which is typically economic damages.

IANAL - but I'm fairly sure that your post is mostly incorrect.

Re:the core of the issue (1)

Raffaello (230287) | more than 3 years ago | (#35520276)

Individual function prototypes may not be copyrightable, but whole header files may well be copyrightable. In copyright law one cannot generalize from "this bit is not copyrightable" to "the whole work is just a collection of bits, each of which is not copyrightable, so the whole work is not copyrightable."

It is simply not a settled matter of law whether header files are copyrightable, so Google and Android developers may be in a bit of hot water here.

Re:the core of the issue (4, Interesting)

mmurphy000 (556983) | more than 3 years ago | (#35519986)

This library is essential for Android application development, therefore it would become legally impossible to develop a closed-source Android app.

By that argument, it would be legally impossible to develop a closed-source Linux app. Yet there are many closed-source Linux apps. Do not confuse "linking with a GPLv2 library" and "writing for an OS that contains GPLv2 libraries".

Re:the core of the issue (0)

Anonymous Coward | more than 3 years ago | (#35520052)

GPL licensed compiler material (such as headers) usually has an exception that allows users to dynamically link to the libraries and include the headers, without needing to release the resulting binary under the GPL. The purpose of this exception is to increase the market share of open source compilers, by allowing proprietary developers to use them, while still not permitting proprietary compilers to be developed from their code.

It probably doesn't matter anyway, because header files aren't eligible for copyright. They are too simple, and have no artistic value. They are simply machine readable definitions of a standard.

Re:the core of the issue (1)

Chemisor (97276) | more than 3 years ago | (#35520114)

There is a quote from Linus in the article where he raves that including a kernel header does make the resultant program subject to the GPL. So, I wonder, if I want to write an app that writes to the framebuffer device and have to include linux/fb.h, does that mean I'm violating copyright? If I write a libc alternative that needs definitions from the kernel headers to work, am I violating copyright? 'Cause if I am, it's definitely time to ditch Linux and work on yet another OS... Sigh.

Someone please explain (2)

lavers (1946786) | more than 3 years ago | (#35519702)

"Google publishes that code under the Apache licence, but derives it from Linux source protected by the General Public Licence version 2 (GPLv2) claiming to remove all copyrighted components before changing the licence."

I don't follow this. They're saying that they take the GPL-ed Linux source, and strip out all copyrighted parts. Wouldn't that be all of it? The GPL only works because the code is copyrighted to the developers.

Re:Someone please explain (2)

just_another_sean (919159) | more than 3 years ago | (#35519868)

claiming to remove all copyrighted components

It means they are using the headers only and that these do not meet the minimum standard for copyright protection. If we can copyright header files then we might as well throw in the towel and allow 1's and 0's to be copyrighted, declare clean room reverse engineering illegal and just say F*&k you interoperability.

Ed Naughton's a lawyer? (1)

NYYz (1063406) | more than 3 years ago | (#35519760)

I thought he worked in the sewer.

HuffPo + Florian Mueller = 0 credibility (0, Offtopic)

Anonymous Coward | more than 3 years ago | (#35519786)

A cesspool of CEO and anti-vaccine wingnuttery quotes anti-FOSS troll Mueller. No news here.

And you wonder why... (0)

Anonymous Coward | more than 3 years ago | (#35519854)

Stupid shit like this is exactly why I avoid open source code in my projects.

Applications shouldn't be at risk (0)

Anonymous Coward | more than 3 years ago | (#35519886)

Because of an addendum Torvalds added to the GPL v2 as it applies to the Linux kernel. I couldn't find it quickly on Google, but it was language to the effect that applications that only use Linux via standard system calls are not considered derivative works with respect to the GPL.

Stallman later remarked that he wished Torvalds hadn't added that clarification.

Edward Naughton? (0)

Anonymous Coward | more than 3 years ago | (#35519914)

I would have thought Edward Naughton's first rule about header files is don't talk about Linux kernel header files .

Absolutely brimming over with wrongability (1)

mark-t (151149) | more than 3 years ago | (#35520266)

No author can be legally required to reveal the source code to something that they hold the copyright on, even if it is a derivative work of something that they do not.

They can, however, be forced to cease distribution of the application if they do not. They can also, depending on the exact license on the original work (particularly if it was dual licensed), possibly be held liable for damages.

The GPL does not and cannot force a copyright holder to do something with his or her own code that they are unprepared to do... it can only force particular actions with respect to code that the copyright holder did not author, which, in turn, can severely legally limit who the code can be distributed to without complying with its terms.

Removing Microsoft references from Bio (0)

Anonymous Coward | more than 3 years ago | (#35520274)

Noticed something interesting about the Huffingpost's blogger and IP lawyer Edward Naughton's bio on his law firm's site Brown Rudnick [brownrudnick.com] The current page doesn't mention that Mr. Naughton represented Microsoft in different lawsuits. However googlecache reveals something different:

cached version [googleusercontent.com]

"This is Google's cache of http://www.brownrudnick.com/bio/bio.asp?ID=512&ForwdName=Edward+J.+Naughton. It is a snapshot of the page as it appeared on Mar 8, 2011 07:27:15 GMT. The current page could have changed in the meantime. Learn more"

What does the cached version say?

Just this:
"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."

and this:
" Represented Microsoft in several dozen lawsuits against resellers and corporate end-users of counterfeit, infringing, and unlicensed software."

I wonder why that information was removed from his bio?

Also, he mentions and links to "prominent" blogger Florian Müller. HAHAHAHAHAHAHAHA!!!!

FUD... (0)

Anonymous Coward | more than 3 years ago | (#35520300)

I'm sure Apple and M$ are behind most of this nonsense - both are scared $hitless of Google. Unfortunately, for them, most of the strongest Android advocates are those that write software and recognize these types of tactics as being the same they've fired at Linux for years..

lol (1)

kelemvor4 (1980226) | more than 3 years ago | (#35520318)

It's getting comical reading how everyone is going after google every time they have a product that ends up being successful.... search.. street view.. android... probably others. Not that the same thing doesn't happen to other companies when they have smash hits.. Facebook.. crapple...etc.
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