Google’s approach to the Linux kernel with Android may be leaving it open to legal attack
Google’s Android could face a serious legal challenge from the open source community due to the “audacious” attitude the company has taken to the GPL, according to legal experts and an open source campaigner.
The issue centres on Bionic, a custom-built library Google has used to interface between the Linux kernel and user-facing programs.
Intellectual property protections
Bionic contains a set of Linux kernel header files automatically generated from Linux kernel headers and necessary for user programs to make calls into the kernel. In a statement Bionic places at the beginning of each header, Google states that the header “contains only constants, structures, and macros generated from the original header, and thus, contains no copyrightable information”.
Bionic is a way for Google to keep the Linux kernel, with its GPL version 2 licence, separate from user-facing programs, but it may violate the legal safeguards designed to prevent individuals and organisations from creating their own private Linux “forks”.
In an article on The Huffington Post, intellectual property attorney Edward Naughton described Google’s handling of the kernel headers issue as “unusually audacious” and said that it is legally questionable.
“Google’s position is a bold assault on copyright protection for software and source code,” Naughton wrote. “There are cases, to be sure, that have permitted some copying of very small snippets of code when that is necessary to achieve interoperability. […] Those cases do not provide much support for Google’s argument that copyright law allows it to copy entire source code files, and even less for its suggestion that entire APIs [application programming interfaces] are not copyrightable.”
Naughton, who was inspired by concerns raised by attorney Raymond Nimmer in a February blog post, said he felt Google’s approach was risky.
“I have serious doubts that Google’s approach to the Bionic library works under US copyright law,” he wrote. “At a minimum, Google has taken a significant gamble. While that may be fine for Google, because it knows about and understands the risks, many Android developers and device manufacturers are taking that same risk unknowingly.”
On the other hand, if Google succeeds in its approach, it may have serious implications for the Linux world, Naughton said.
“What is potentially even more interesting is what happens if Google is right,” he wrote. “If that is the case, Google has found a way to take Linux away from the open source community and privatise it.”
Open source campaigner Florian Mueller noted that Google could head off a legal challenge by replacing Bionic with glibc, the library used by Linux-based Android competitors such as MeeGo and HP’s WebOS, but he sees this move as unlikely.
“It’s apparent that even the LGPL’d glibc is too much of a copyleft risk from Google’s point of view, so Google decided to build Bionic in the dubious way I described herein, essentially going its own way and thumbing its nose at the industry convention,” Mueller wrote in an analysis of the issue on Thursday.
If one of the many Linux kernel copyright holders decides to sue Google, it could result in a disaster for the Android developer ecosystem, according to Mueller.
“Continuing on the current, highly hazardous basis is not a viable option as far as I can see,” he wrote.
Google declined to offer comment on the issue.