Does section 4 of the GPL version 2 mean that many (if not all) Android vendors have already lost their rights to distribute Linux? According to an IP litigator, the answer is yes.
Edward Naughton, litigator and partner with the lawfirm Brown Rudnick believes that by refusing to make freely available the GPL'd portions of Honeycomb, Google is forcing its OEM partners into a situation of non-compliance with the GPL.
Naughton believes that this puts OEMs, and even Google itself, in a really bad position:
In the Best Buy case, the SFC and SFLC argued that a violation of the GPLv2 immediately terminates a licensee's right to distribute covered code and that the licensee cannot remedy its violation by providing the source code after the fact. The express permission of the relevant copyright holders is necessary to reestablish the licensee's rights.
Given the woeful track record of GPL compliance in the Android ecosystem, that argument would imply that almost every OEM distributing Android devices today is unlicensed, and even Google itself may not be licensed to distribute portions of the Android code.
Open source advocate Florian Mueller dissect section 4 of the GPL version 2. Here's the relevant section:
4. 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. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.
Mueller steps through the section, but here are the highlights:
- 1st sentence: Obligations under the license, one of those being source code disclosure as outlined in the previous section.
- 2nd sentence: Sanctions for those who don't comply, including automatic termination of all rights under the license.
Is the GPL enforceable? It seems to be.
Back in 2009 the Software Freedom Conservancy (SFC) and the Software Freedom Law Center (SFLC) bought copyright infringement lawsuits against manufacturers and distributors of embedded Linux devices that made use of the BusyBox utilities. One of the cases involved Best Buy which sold a Blu-ray player with embedded Linux and BusyBox. The SFC and SFLC teamed up with one contributor to the BusyBox project and filed motion for a preliminary injunction to prevent Best Buy from selling the Blu-Ray players despite the BusyBox code had been made available. The case never made it to court but Mueller says that 'it's a safe assumption that Best Buy had to cough up a significant amount of money to resolve this matter.'
So where is this headed? According to the SFC/SFLC the only way out of this would be for to secure a new license from each and every original right holder (that is, the original contributors). When it comes to Linux, this could mean having to approach literally thousands of people, and any one of those could hire a lawyer and start legal action.
It's going to get messy.