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
- 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
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
Now how does all of this tie into
Google's purchase of Motorola
[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
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.