Lawyer touts new legal time-bomb for Android

Phones and slab makers in peril, says 'totally bogus' attorney

Every manufacturer using Android is in breach of the GPL, according to IP attorney Edward Naughton, though his last accusations didn't exactly run Android out of town.

Last time it was a complex argument about how effectively Google had cleaned GPLv2-licensed header files, but this time the argument isn't so esoteric and could, in theory, open manufacturers up to litigation from anyone who has contributed to the Linux kernel.

The premise proposed by Naughton is that all the Android manufacturers have, at some point, been in breach of the licence in failing to distribute source code alongside their devices, sometimes lacking specific drivers and sometimes with parts of the source apparently switching licences (being distributed under the Apache variation, for example).

The GPLv2 is pretty explicit that anyone failing to distribute source is in breach, and that switching licences isn't allowed. Critically the licence also states that anyone in breach surrenders all rights to any protection at all, so, according to Naughton, all the Android manufacturers could be open to litigation from anyone involved.

In March the same chap raised issues about the legality of Android, based on how Google had cleaned up C header files to extract them from the GPL. That point was dismissed by father of Linux Linus Torvalds as "totally bogus", and decent legal minds also cast doubt on the issue which revolved around whether a header file could be copyrighted.

That subject still hasn't come to court, as pointed out by patent-watcher Florian Mueller, who also puts the issue in relation to the recent case of BusyBox and Best Buy.

In that case, an individual Linux developer who had contributed to the open-source BusyBox distribution sued Best Buy for distributing kit with the OS preinstalled. That case was settled out of court, but Meuller reckons it still sets a precedent for a single contributor to a GPL-covered project taking on a company using the code in breach of the GPL.

And at a glance it seems that the rules have indeed been breached, distributors are required to make source code available (or at least explain how it will be made available)... and many haven't. Enthusiast Matthew Garret helpfully compiled a list of tablets showing which are in breach.

None of that matters if no one decides to sue, and even then they'd need significant financial backing. But Naughton points out that this is a hard thing to fix as thousands of developers have contributed to the kernel over the years, so it could hang over Android's head for a long time. ®

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