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back to article Google's 'clean' Linux headers: Are they really that dirty?

The trouble with open source is that most coders aren't lawyers and most lawyers aren't coders. And even if everyone did wear both hats, there would still be ample room for disagreement. The law, you must remember, is subjective. Two intellectual-property lawyers have told the world that Android is at risk of legal attack …

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Both lawyers tied to Microsoft in one way or another

are spreading the same subtle Microsoft style FUD saying there's a certain risk in using Android. Linux kernel developers and SFLC lawyers keep saying there is no problem with those headers. So what is Microsoft or (more likely) some of their proxies going to do, sue Google on behalf of Linux kernel developers ?

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WTF?

It doesn't matter.

Look, lawyers work for clients who are paying them and customers tend to go to lawyers who have some industry knowledge on these types of topics.

If you pay attention to the issue at hand...

Google is saying: "We stripped out the unique stuff and are left with the non-creative parts, therefore we are not violating the copyrights and we can then copyright our stuff under Apache's more open rights system."

What the other lawyers are saying: " You can't strip out enough stuff or say that the underlying framework is by itself not enough to copyright." And... "You start with a document that is protected by copyright and then reduce the document to something that loses the copyright? That's not right... "

The nice thing is that lawyers are paid to argue both sides of an issue. It will take a judge to determine who is right.

But to credit this 'FUD' to Microsoft is a bit biased. Microsoft has very little skin in the game. And it isn't FUD.

The risk is there. No, not to the application developer who writes an application that sits on Android. But the phone manufacturer that uses Android and then modifies Android to add features or improve the OS for better energy management. These are the people who are going to feel the heat on this.

At the same time, it adds more weight to Oracle's arguments.

The bottom line is that there is enough of a case that it will go to the courts and the courts will be conservative on this issue.

IMHO Google is on thin ice. Were they to have done a clean room version... then things would be different. But Google took shortcuts and they are now starting to bite them in the arse.

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Shill more

But to credit this 'FUD' to Microsoft is a bit biased. Microsoft has very little skin in the game.

Are you serious? This is *EXACTLY* the kind of FUD that Microsoft has been trying to spread for years. This just another attempt, which thankfully was thinly veiled.

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Scripts assembling headers...

Did you read the part of the article that is talking about scripts that created those headers?

I can write such scripts as well. So, what's the problem with this approach?

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MeeGo on the Dell Streak

"You start with a document that is protected by copyright and then reduce the document to something that loses the copyright? That's not right... "

Yes. And there is also a practical side of this argument:

I have a Dell Streak, with Android 2.2, and some people wanted to port MeeGo on it. They did it, but where struck with proprietary drivers for the video chip that were compiled against the kernel headers - these exact headers that are at stake here - and are therefore not compatible with the MeeGo kernel headers, so there is no 3D hardware acceleration possible for MeeGo.

In other words, while there are binary and proprietary drivers for Linux, they are encapsulated in an open-source layer that makes them usable on different kernels, thus avoiding the GPL requirement: they are generic binary blobs not tied to a particular kernel. But *not* with Android *because* of these exact headers.

Put it another way again: how would anybody explain how a binary driver linked against 1 particular binary flavour of a GPL-d software and unusable in any other binary flavour, could not be violating the GPL ? Either "Android" proves that the binary video driver is generic by making it usable on other Linux kernels, or it is in flagrant violation of the GPL. Been-there, done-that.

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Grenade

Shill? Sorry no

Sorry I'm no fan of Microsoft.

Gate's mommy and daddy were lawyers and Gate's learned from their lack of ethics. Why else do you think he's giving the bulk of his money away? Could it be that he's got a guilty conscience from screwing over people? Sorry I digress... The point is that Gates and Microsoft showed that its profitable to break the rules and then pay off the lawyers.

Google learned from Microsoft. They are a monopoly, except that they haven't been declared a monopoly by the courts. Only IBM and Microsoft have that distinction and once you're defined as a monopoly, the rules of business change.

Unless you have proof that Microsoft is behind this, then you're blowing hot air. Like I said, Oracle and IBM have as much if not more to gain than Microsoft. (Albeit, Microsoft has something to gain too.)

I'll repeat it again slowly...

Big companies hire attorneys who are specialists in certain fields. The more notable the attorney, the more likely they will get targeted by the large software companies. Unless the attorney is actively on retainer or working for Microsoft, you're the one creating FUD.

Try and focus on the issue.

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Boffin

@Zolko

"I have a Dell Streak, with Android 2.2, and some people wanted to port MeeGo on it. They did it, but where struck with proprietary drivers for the video chip that were compiled against the kernel headers - these exact headers that are at stake here - and are therefore not compatible with the MeeGo kernel headers, so there is no 3D hardware acceleration possible for MeeGo."

Its not a question of being physically unable to work, but licensing issues.

Google is attempting to circumvent copyright law by saying if we take a copyright document... strip out this, that, and the other thing, what's left is something that really isn't creative and should be protected under copyright law. What the lawyers who are critical of Google are saying is that Google can't do it. Stripping down a copyright protected document to a base document is not the same thing as building up the same base document from scratch. In the end, both base documents could contain the same material, however its the process of how they obtained the based document that is at issue.

The various flavors of GPL protect the authors of their code, and I believe that the GPL doesn't prohibit the authors of releasing the same software under different license. That is to say that Google could pay those copyright holders to release the code to them under a different license so that they have a right to use it.

But then again, here's the rub. Google isn't doing that. What they are doing is trying to get around the law by getting creative and then hoping that they don't get caught.

Look at it this way...

You have a project that is built on Apache's license. There's a piece of code that you want to use that is licensed under GPL. GPL has restrictions on use that you do not have with Apache. What Google is trying to do is to trash the copyright laws and re-release a modified version of the code under Apache.

NOT ALL OPEN SOURCE LICENSES ARE CREATED EQUAL. Sorry to shout but that's a concept that many of the commentards don't quite grok. Under Apache, you release it, as long as I attribute you as the author, I can do whatever I want. I can take your code you wrote and gave away for free and embed it in my 'for profit' product and make millions off your work. GPL? Not so much. I embed GPL code, where I made modifications that gave me a proprietary advantage, and I have to release that code to the public.

You have two examples...

1) Apple and the GNU C/C++ compiler. Or rather NeXT. NeXT modded the gnu C compiler to do Objective-C which is the base language for NeXTStep, OS X, and iOS. Under GPL, Apple had to release their mods. However Apple didn't have to release their libraries...

2) Apache's Hadoop (HBase) project. One can take LZO compression to make Hadoop more efficient. Because LZO's GPL is not compatible with Apache's license, Apache and Cloudera made the choice of not including it in their release, but allow the end users to add it if they wanted.

Both actions are legal and ethical. Google's? Not so much.

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Microsoft has a lot of skin in the game...

I agreed with until you said, "But to credit this 'FUD' to Microsoft is a bit biased. Microsoft has very little skin in the game." Microsoft may not be getting a lot of time on the field, but they have a lot of skin in the game. They absolutely must improve WP7 market share, otherwise there is going to be a shareholder and/or board revolt against Balmer's leadership. Windows Mobile has gone through three years of market share declines, waiting for WP7. If WP7 fails, Balmer is finished. One way to boost WP7 is attack the current #2, Android.

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I, for one...

... do not welcome our all-knowing, internet-crawling, copyright-removing, source-closing ¹ chocolate factory overlords.

_____

¹ I am referring to Honeycomb, of course

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Troll

Typical law argument

When both sides accuse the other of using Insane Troll Logic.

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Risk to Google is very small

OK, so Google have done their best to meet the the Abstraction, Filtration and Comparison test. Mainly by doing a lot of filtration on the header files.

That leaves the more complex macros and the inline functions.

Now you've got to find a copyright holder of an inline function that is willing to sue. Sure IBM or Oracle might have enough money to take on Google, but why would they? It would run counter to their own interests.

There's also the risk to the firm suing. Google would obviously try to mitigate it's behaviour by re-writing the inline functions. You can't image that such a patch wouldn't be accepted by the kernel folk. Then that rather puts the litigant in a bind -- succeed and they get damages for Google's past use of Linux, but their own current use of Linux is then open to a suit by Google (because who doesn't run non-GPL code on their Linux machines). The only firm that could contemplate a suit would be a IP litigation specialist, and those companies don't have any code in Linux.

Then there's proportionality. Let's say the person suing succeeds. What should the penalty be? For a ten-line inline function? Less than the legal expenses.

Sure Google are running a risk. A risk they've successfully minimised. Which is all business asks from its lawyers. You simply can run a business with zero legal risk in these days.

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You Are Totally Missing The Point and The Danger

Paying a comparatively small amount of damages for past use is no problem for Google. But this isn't the problem. If this might happen the problem is far, far, more impactful for a commercial software developer. If the copyright was breached, then you have to Open Source all your code. If there was such a finding against Google your competition would have a court verified judgement making it clear that is what you are now now obliged to do because that is the license that applied and your code. Anyone using the affected code, would be obliged to use a copyleft license. It would having nothing to do with what is morally fair or what you or I or even Richard Stallman thinks should be the case (by the way I'm not saying Stallman is wrong to play this down, his judgement may be based on his assessment of the risk Google might lose, I haven't read his reasons). Such a scenario would result in one unholy mess, with Google getting sued left right and centre for negligence and many test cases on whether companies affected can be forced to open source their code by their competitors.

So this case isn't shades of grey. Even if the risk of occurrence is low, when doing risk analysis it would be classified as low-risk of occurrence, high-impact.

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Except....

You wouldn't be forced to Open Source your code.

Granted you'd have to stop distribution to avoid that, which is a risk, but it's not quite the same as showing the world how your software works.

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You are Totally Overplaying The Danger

"If the copyright was breached, then you have to Open Source all your code."

WRONG. If you do not comply with the GPL, you lose any rights (eg. distribution) to the covered code (immediately, in this case of GPL v2). As long as you then remove the offending code from your product, you're good to proceed with your proprietary evilness, or whatever.

The only question remaining then, is one of compensating the copyright holder (or the court, at least) on account of the previous breach of rights, should a copyright holder sue for such compensation/damages.

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your competitors can not not force you to comply

It is incorrect to suggest that if a GPL violation did occur, you could be forced to open your code due to the GPL.

The only parties that can legally enforce the GPL are the holders of the copyrights. And it is unlikely that your competitors are the copyright holders.

The risk is indeed quite minimal. If the holders of the GPL copyright do not object, there is no problem.

And it does not mattter what Microsoft thinks. Or, what Microsoft might hope would be a legal problem for Android.

It is FUD of the worst kind.

If Microsoft objects let them try to sue. They can't. And that explains why they want to see the FUD out there.

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Say what?

Surely if you are using the library as a library, and the OS as an OS, then problems affecting this shouldn't affect you if you aren't directly involved in compiling/linking with the possibly-tainted code... any more than using an open source compiler carries the obligation of open sourcing everything it compiles...?

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Boffin

RE: Lewis Mettler, not completely accurate

I seem to recall a article on the vary site about some code entering the kernel from MS, I think it was to help running linux on Hyper-V or some such. If my recollection is correct, that means that Microsoft does own some copyrights to the Linux kernel. That might be enough to give them standing (the right to sue).

IANAL, of course.

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@Glen

"Now you've got to find a copyright holder of an inline function that is willing to sue. Sure IBM or Oracle might have enough money to take on Google, but why would they? It would run counter to their own interests."

No, absolutely not.

Look, Oracle is set to lose billions on Java ME licensing if Google prevails in the Oracle/Google Java/Android lawsuit. So Oracle has a lot of skin in the game and it is in their best interest to sue.

It is also in IBM's best interest to have Oracle win the lawsuit because they too will gain from a single variant of Java even though they don't really play in the Java ME space. Think of IBM supporting Oracle so that they get a favor from Oracle down the road.

Its also in a lot of people's best interest because of the potential harm that this could do to the existing copyright laws. That you can essentially strip away copyright protection by claiming that what's left isn't creative enough to be copyrighted.

While some in the Open Source community hate Oracle for their aggressive stance on Java, they aren't the bad ones here and Google is playing loose with copyright laws.

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If Microsoft had done that

Stallman and his army of bearded virgins would be laying siege to Redmond right now.

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Microsoft did do that

Where do you think their dns server and Active Directory came from? Its all ported Open Source software. it started out as Bind, OpenLDAP and Kerberos. You don't think they wrote that code from scratch do you?

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You have to be a virgin to use decent tools?

Sounds like "internet hardman" speak to me. Personally I haven't found my use of GNU tools has affected my sex life all that much.. I don't live in "my mothers basement", I "get out" a lot,.. and hey I've had sex with more than one female and I haven't had to pay for it. The fact that you aren't able to think up anything more intelligent than "neer neer at least I gets secks!" might just put the womens off though.

I heard windows users have small tackle and apple users are all four eyed lady boys or summin.

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Joke

@Daniel

four eyed *lazy* boys

There fixed that for you!

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RE: Microsoft did do that

Bind is BSD license, OpenLDAP is modified BSD, Kerberos is a modified MIT license. None of these licenses are copyleft, so you're comparing apples and oranges.

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crApple

What's apple got to do with any of this?

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Should have used BSD

Why risk GPL when there was BSD available for the taking with no Copyleft? At the time the critical decisions were made Linux had no ARM or embedded advantage over BSD, LInux only had marketing buzz.

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Yeah..

Because Free/Open/NetBSD are all really great on the interactive workload front..

I like OpenBSD but it lacks a lot of modern stuff that Linux has..

An advantage for ARM platforms would be the huge amount of upstream support for Linux.

All the major CPU vendors have at least some Linux presence.. can you say the same for any of the BSDs?

And aside from all that.. the people that have wrote the code these lawyers are getting all shitty about have said "we don't care". So there is zero issue here.

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Are you kidding?

Are you kidding? GNU/Linux already had a established base in ARM embedded devices and cell phones when bionic was cocked. NetBSD isn't exactly a large embedded OS platform. Other libraries does the same thing for their headers for that matter. And they would be dependent on the GNU toolchain for building apps either way. Your perfectly fine for building drivers for proprietary hardware in Linux so why would they stay away, it works perfectly wonderful in a commercial environment, certianly better then a blob detesting *BSD community. Which don't like to have their kernels forked any more. Working upstream is the advantage too.

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BSD, etc

Linux had more than marketing buzz; it has a pretty substantial base of tools and developers already available... far more than can be said for any of the BSDs. On the other hand, I agree with your underlying point. Why do so many companies use GPL code incorrectly, knowing full well its nature, when they could just use a BSD instead?

Binary blobs, incidentally, are a particular aversion of OpenBSD and for entirely sensible reasons. Its also quite irrelevant when rolling a new commercial product. As for forking... I've never seen any particular aversion to that sort of thing, but more a sort of 'what's the point?' attitude.

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Out of date

You're a bit out of date on those opinions - not all BSD are equal.

So far as blob support is concerned, none of the BSDs have a problem with proprietary firmware loads on startup, especially for NICs. Some BSDs do have a problem with blob drivers - OpenBSD does as the 'open' in its name suggests. FreeBSD is considerably more flexible with blob driver support.

The BSDs don't tend to be against forking kernels, as such - what some of the BSDs are against is taking attention and funding away from the parent project. Certainly in OpenBSD land, creating your own new shiny installer and graphical desktop with an OpenBSD base is frowned upon for this reason as the funding is then diverted to a group of people who are not doing most of the heavy lifting. I would have thought it'd be easier to contribute code to the BSD of choice or choose a BSD with loadable kernel modules (FreeBSD, NetBSD. OpenBSD in theory supports them, but no-one uses the functionality) or at a last resort supply source code patches/fork.

The GPL toolchain is currently required, but not for much longer. PCC is currently in beta, and will replace gcc. GPL code will slowly be replaced with code using licences more closely aligned to BSD.

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BSD kernel

I suspect the reason for using Linux over BSD is the Linux kernel is more scalable, has been used in the embedding domain for a very long time and has better driver support. All those chipset OEM suppliers provide drivers that run on Linux so it's easier to make devices.

I don't think there is anything intrinsic to Android that says it MUST run on Linux. Most apps shouldn't really care what kernel is sitting at the bottom of the stack, although it might have some impact on native apps, those using particular esoteric network functionality, and perhaps might expose some race conditions and the like in apps which work by accident according to the kernel's scheduler. I guess if Google had to resort to a plan B they could probably hop to BSD, QNX or some other Unix like kernel without significant trouble.

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pretty much a zero issue

It is true that if the holders of the GPL copyrights do not care, there is no issue at all.

It is just FUD. Almost like SCO claiming all of the copyright violations in Linux. Again, only the holder of the copyright can complain.

Scare mongers like Microsoft just want to disadvantage a competitor by making up legal issues that do not really exist. No doubt Microsoft has a bunch of those itself, right?

Proprietary software in general has a much higher probability of harboring copyright violations simply because it is secret. And everyone has to get a law suit going and gain discovery in order to look at those secrets.

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Weak sauce

So, anything at all to bash Google then? The opinions of Linus Torvalds, Eben Moglen and Richard Stallman aren't enough to put this non-issue to bed? That this guy won't even make an actual allegation, but instead hint at vague suggestions.

You're ruining your reputation with this tripe. I hope you're being compensated what that's worth to you.

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Shrill?

I totally agree with you. Metz comes across as a Microsoft Shrill with his anti-Google rants. And lately he seems to be getting information from known MS shrill Flo Muller.

This is a non-story. Everybody connected to it cannot see that there is an issue and have publicly stated this. Two lawyers connected to Microsoft decide it is an issue and all pro-Microsoft journos and shrills jump up and down trying to make this a bigger issue.

It is part of Microsofts FUD campaign against Android. They are attempting to scare developers from the platform so they can be enticed to the MS platform, WP7.

Congratulations on continuing spread MS FUD Cade Metz. I hope you are being paid well.

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Come on, be fair

The piece clearly isn't an op ed, and gives both sides of the story. All of the reasons you give for it being a spent story are within the article - there's no convenient ignorance of facts and no endorsement of either side of the argument. The reported has even put allegations of bias to one of the main actors, Nimmer, and gone with a headline that suggests the story is no big deal.

It's not bad reporting to say "this person prominently says this, the facts are these" just because the facts are more subtle that the person contends.

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Shrill

Your voice may be, but Cade I think is not.

The word you were looking for was SHILL.

Think about learning simple words before using them to criticise people...?

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(Written by Reg staff)

Re: Shrill

Fear uncertainty and DUHHHH.

PS Stop fucking calling people shills, for fuck's sake, it's moronic.

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Unhappy

Think joker

Why so serious?

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'nuff said...

"A week before his story appeared on the Huffington Post, Naughton's online bio was edited to remove references to his past work with Redmond."

Microsoft upto their usual tricks. they are playing the same dirty tricks in the mobile arena now that also got them a foothold in the console gaming arena. if you can't see what is going on here. then frankly you are a moron.

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Fundamentally Flawed Legal Analysis

The analysis is fundamentally flawed because it does not take into account the modification of the GPLv2 which provides that programs that use Linux are not derivative works. I detail the problem in my blog http://lawandlifesiliconvalley.com/blog/?p=593. And Sean Hogle agrees with me for slightly different reasons http://www.epiclaw.net/2011/03/21/oh-noes-teh-angry-birds-gpld-googles-alleged-gpl-violations-android. This is really much ado about nothing.

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Vic
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Re: Fundamentally Flawed Legal Analysis

> programs that use Linux are not derivative works.

Indeed.

From the COPYING file that ships with every copy of the kernel source :-

<quote>

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".

</quote>

The only unknown here is why the media keep repeating obviously bogus claims from lawyers in the pay of Microsoft, when the copyright owners (such as Torvalds) have already said that there is nothing to see here.

Vic.

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Linus

The thing is, Torvalds is not a lawyer. Just because he says that he doesn't care doesn't mean that he shouldn't care, doesn't mean that this is not a copyright contravention, etc.

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If the law were fixed and unchanging you would be correct.

But this is the USA where how a case is decided depends more on which court the case is heard in than the facts of the case. If the judge decides the material is covered, its covered because the judge is the law. Well, that's what they claim anyway.

Granted, this is more a flaw of the entire US legal system than Linux/GPL/copyright specifically, but there it is.

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Re: Linus

> Torvalds is not a lawyer

But he is the owner of a significant amount of the work we're talking about. He has the right not to care, and him saying that he doesn't would constitute a very effective defence should anyone else decide they did.

> doesn't mean that this is not a copyright contravention

Perhaps not - but the COPYING file distributed with every copy of the kernel source says it isn't, and that means it isn't.

That's about as clear as you can get...

Vic.

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Vic
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First things first...

> But this is the USA where how a case is decided

Before a case can be decided, you've got to have a case.

To have a case, you've got to have a plaintiff.

There is no plaintiff. No-one has made a complaint.

This is simply noise from a Microsoft lawyer. The owners of the copyrights involved - the only people who could actually take any action here - are fine about the whole thing.

So - someone whose client would benefit directly from you being fearful, uncertain, or doubtful about using their competitor's product is spreading a little FUD about that product. Now who'da thunk it?

If the kernel owners decide to complain[1], there might be a story here. They haven't yet. That leaves something of an absence of story...

Vic.

[1] And, given that what Google has done seems to be explicitly permitted by the copyright notice on the kernel, I can't see them doing so.

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From the Piece

As quoted: "Of course, I'm not a coder. Someone else would have to look at the code and make that judgment."

Someone has: Linus Torvalds.

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@Vic

"The only unknown here is why the media keep repeating obviously bogus claims from lawyers in the pay of Microsoft, when the copyright owners (such as Torvalds) have already said that there is nothing to see here."

Unfortunately you're wrong.

Look, here's the underlying issue. Or at least one of them... you cannot take software that is copyrighted and 'filter' it to the point where the resulting code is *not* *a* *derivative* *work* which would violate its copyright and then try to copyright the derivative work under Apache's license because it is more 'big business' friendly.

Are you and other commentards not capable of understanding the dangers of what Google is proposing to do? Essentially they are rewriting the copyright laws. Notice how Honeycomb isn't open? Now why do you think that is?

Google screws artists by under paying them as they make money off YouTube playing their material. The chocolate factory *is* *evil*. You're just in denial.

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@Gumby

> Unfortunately you're wrong.

Not so.

> Look, here's the underlying issue. Or at least one of them... you cannot

> take software that is copyrighted and 'filter' it to the point where the resulting

> code is *not* *a* *derivative* *work*

It has already been determined (in SCO vs. Novell, amongst many other cases) that you very much can. SCO thought they could prove that Linux was copied from Unix because it had the same numbers in errno.h. This argument went down in flames, because that is not a breach of copyright.

> Essentially they are rewriting the copyright laws.

No they are not.

Copyright laws already permit verbatim copying of de minimis fragments - it would be ludicrous to do otherwise - you couldn't write a book review.

> Notice how Honeycomb isn't open? Now why do you think that is?

Honeycomb is an entirely different matter. It's one of the reasons why I dislike the Apache licence - but it has nothing whatsoever to do with this.

> The chocolate factory *is* *evil*.

It probably is. But once again, you make the mistake of believing that, because you dislike someone, they are obviously guilty of any allegation you throw at them.

I'm not arguing that Google is a fluffy-bunny paragon of virtue. What I'm arguing is that there are no legs to this allegation, by virtue of Google having acted entirely within the way the kernel headers are supposed to be used - as explicitly laid out in the copyright notice of those headers. Can you really not see the difference?

> You're just in denial.

No, you're just wrong. Again.

Please read up a bit on copyright law before you start making ludicrous assertions. You do not understand either US or UK law in this respect.

Vic.

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Coat

@Vic

I suggest you go back and look at the arguments being made.

Google is suggesting that they can strip a copyrighted document to a point where it loses its copyright, allowing them to then issue the document under a different copyright license.

Lawyers opposing this notion say that you cannot do this.

Your reference to the SCO/Linux issue is not a good parallel. I suggest you go back to the complaint and see why that is.

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Vic
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@Gumby...

> I suggest you go back and look at the arguments being made.

Errr - you should do likewise.

> Google is suggesting that they can strip a copyrighted document to a point

> where it loses its copyright

No they are not. This is crucial: they are not doing that. However many times you repeat that claim, it remains factually incorrect.

What they are doing is redistributing the non-copyrightable portions of the original. they are permitted to do this - both by law and by an explicit release within the kernel source.

> Lawyers opposing this notion say that you cannot do this.

Lawyers paid by Microsoft say you cannot do this. All the other lawyers who have weighted in on the subject say you can.

Perhaps there is a correlation there...

> Your reference to the SCO/Linux issue is not a good parallel.

Actually, it is - since the same subject came up, and was shot down for the same reasons.

That SCO were later shown not to have any copyright on those files in the first place was just delicious.

Vic.

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Re: @Gumby

"What they are doing is redistributing the non-copyrightable portions of the original. they are permitted to do this - both by law and by an explicit release within the kernel source."

You can't in general point at the "non-copyrightable portions" of a copyrightable work and say something like, "Oh, it's OK! This bit's in the public domain (or whatever), so I'm redistributing this!" Shaking off the copyright is much more difficult than starting with something that can be said to be exempt from copyright and then adding stuff that makes it subject to copyright (and even then you have to be careful about laws in different places), not least because in the process of shaving bits off the copyrighted work, there's a strong argument that says that you're still developing a derived work, even if it has less "work" in it.

Having said all this, some of the copyright holders of the work from which the original files are taken don't believe that such files constitute copyrightable work when taken in isolation. Moreover, their position is that the copyleft effects of the kernel licensing aren't supposed to render programs linking to the kernel via such interfaces as being derived works of the kernel.

So, really the situation can be summarised as "bad lawyers plus bad Google". "Bad lawyers" because they're trying to make more out of a situation than is probably present, but "bad Google" because stripping away stuff from a copyrighted work runs the risk of licensing provisions offered by the authors of that work becoming invalid and then Google being forced to effectively defend the result in a situation analogous to a schoolboy trying to defend his magic mathematics test answers in front of the headmaster.

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