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The Mobile Earthquake - GPL Compliance, Google Acquisitions, etc.
Monday, August 15 2011 @ 03:30 PM EDT

Attorney Edward Naughton of Brown Rudnick has written [ Part II] more misinformation about the GPL in yet another false prediction of Android's doom. Once again Mr. Naughton takes a non-story and blows it out of proportion, and of course, FOSSPatents does its part to blow hot air into the story as well.

If the idea is to scare off potential Android OEM's or purchasers of Android-powered phones, this sort of scare tactic is just rubbish. It has failed in the past, and it will fail this time.

People who don't understand the GPL probably shouldn't write about it, including lawyers. I'll show you the mistakes in the article, and please note that while I am a member of the board of directors of Software Freedom Law Center, which will factor into this story, I speak only for myself and Groklaw, not for SFLC in this article.

Now we have run into Mr. Naughton before as he has advanced what many of us see as a pro-Microsoft, anti-FOSS position. The fact that he has ties to Microsoft is already established (see Lawyer behind Android infringement claim has Microsoft ties by Joe Brockmeier on NetworkWorld). Why is it a non-story? Consider each of the following points:

  • The oft-cited BusyBox cases are frequently misconstrued. First, both the Software Freedom Conservancy and the Software Freedom Law Center are on record as saying they have never sued (nor do they intend to sue) any party that will respond to a phone call. The important part of that statement is that they are merely seeking compliance, not the millions or billions of dollars frequently sought in software patent infringement litigation. Yes, there have been some non-complying parties that have required a bit more effort and who have then been asked to make a contribution to the above entities to offset the cost of the litigation, but there are far more parties who have simply said, "Help us comply with the rules of the road because we simply want to do the right thing." And, yes, there have been instances where SFC has sought injunctive relief against some recalcitrants, but those instances have been the exception, not the rule. From a Software Freedom Conservancy Memorandum of Law in Support [PDF] of a motion for injunctive relief in the Best Buy case:
    As of the filing of this motion, Plaintiffs have reached settlement with nine of the fourteen defendants and received a default judgment from the court with respect to one other defendant. Thus, only four defendants remain. Settlement discussions with two of those defendants have been very productive and plaintiffs believe settlement with them is imminent. Plaintiffs have hoped to reach an amicable settlement with the remaining two defendants, Best Buy and Phoebe Micro, however, settlement negotiations with those two defendants have proven futile. In the fourteen months since Plaintiffs first contacted Best Buy and Phoebe Micro regarding their violation of the free and open source software license, both have repeatedly failed to come into compliance with Plaintiffs' license and instead chosen to brazenly begin completely new infringing distributions of Plaintiffs' copyrighted software. To be sure, both Best Buy and Phoebe Micro continue to distribute Plaintiffs' copyrighted software today without Plaintiffs' permission, causing irreparable harm to Plaintiffs' rights as copyright holders of BusyBox.

    Plaintiffs would be happy to settle this matter with Best Buy and Phoebe Micro if they either (i) ceased all distribution of BusyBox or (ii) committed to distribute BusyBox in compliance with the free and open source license terms under which Plaintiffs offer BusyBox to the world. Plaintiffs have patiently worked with Best Buy and Phoebe Micro to bring their products into compliance with the license, but unfortunately have now concluded that those efforts are destined to fail because neither Best Buy nor Phoebe Micro has the capacity and desire to meet either of Plaintiffs' demands for settlement. As such, Plaintiffs are forced to protect their interests in BusyBox by now respectfully moving for a preliminary injunction, pursuant to Rule 65, enjoining and restraining defendants Best Buy and Phoebe Micro from any further copying, distribution, or use of their copyrighted software BusyBox.

  • While the claim is that tens -- no, make that hundreds, no, make that thousands -- of Android manufacturers are ignoring their obligation to make the source code for their phones and tablets available in compliance with the GPL, neither author identifies a single one. Doesn't that strike you as a bit interesting?
  • GPL compliance issues with OEMs are not new history; they have been around for awhile and most have nothing to do with Android. More frequently the issues arise from manufacturers of things like set-top boxes who are located outside the U.S.
  • Enforcement of the GPL is not mandatory. Each copyright holder may elect whether or not to enforce (this, of course, does not change the facts of whether a party is in compliance with their obligation to make source code available; only with whether the copyright holders care enough to pursue the issue). This discretion and the election to enforce differs from one FOSS project to the next.

Bradley Kuhn of the Software Freedom Conservancy has called Mr. Naughton out before about his incorrect notions about Android and GPL enforcement. As Bradley says, "Don't you think if he was really worried about getting a GPL or LGPL violation resolved, he'd contact the guy in the world most known for doing GPL enforcement and see if I could help?"

Enough said on that topic, at least by us. Look for Eben Moglen to address these articles when he speaks at the Linux 20th Anniversary in Vancouver on Wednesday.

Now how does all of this tie into Google's purchase of Motorola Mobility. [There are a lot of articles about the purchase, but I found this to be one of the funniest.]

It's all about leveling the playing field and making sure that consumers have choice, not a choice merely between an iPhone 4 or an iPhone 5 or between an iPhone and a phone powered by Windows Phone 7, but a choice between phones operated with a *closed* operating system and one powered by a (relatively) open operating system.

Patently O estimates that Motorola Mobility's huge patent portfolio be as many as 24,000 patents and pending patent applications worldwide in that portfolio now changing hands. And some of those patents are already problematic to both Apple and Microsoft. I would expect one of two outcomes from this purchase: (a) an earlier than expected truce between Google and Apple and Google and Microsoft; or (b) a battle to the death. Let's hope for all involved - the companies, the economy, and consumers - it is the former and not the latter.

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