Archive for November, 2011

Naughton, Android, the GPL and why I’m fuzzy minded.

Edward Naughton latest attack (pdf) on Android/Bionic and his claims that the GPL license has been violated are bordering on ridiculous. First of all, to simply claim that dissenters are “fuzzy minded” because we don’t supinely believe that Google is evil incarnate, that the GPL has been eviscerated, and that we are all going to die in a proprietary/parasitic world is, well, bogus. Brian Proffitt made an excellent response, that calmly provides a reasonable background and some doubts – may it be possible that the author has some motives? Say, like the suspicions previously raised around Florian Mueller? The real problem of the article is that… it’s lame, weak and takes innuendo and unrelated comments to weave them into a “proof”. I hate this kind of FUD. I hated it when Stallman did it, I hated it when Microsoft did it (“see? all those companies that licensed patents from us? It’s the proof Linux infringes!”) and now we have to endure another similar effort.

Let’s start with the biggest problem: “As I explained in detail in my first paper, Google’s approach works only if the cleaning process removes all of the copyrightable material from every one of the headers” and then goes on to show that in his opinion there are still parts that are not “pure headers”. He makes a quite simple logical error: to claim that macros are by default copyrightable. The problem is that some macros are implemented like that for technical reasons-in fact, there are no alternative, equally efficient ways to implement them in the same way. “The court explains that elements dictated by efficiency are removed from consideration based on the merger doctrine which states that a form of expression that is incidental to the idea can not be protected by copyright. In computer programs, concerns for efficiency may limit the possible ways to achieve a particular function, making a particular expression necessary to achieving the idea. In this case, the expression is not protected by copyright” (from: Computer Associates International, Inc. v. Altai, Inc.)
So, macros like those dangerously incriminating ones that Naughton believes it saw in Google indiscriminate attitude towards copyright – well, they are still unprotected, or at least (as Brian Proffitt cleary wrote in his piece) no judge expressed his views on this.

Just this point defuses most of the damning argumentation rised in the white paper – like the fact that “Google optimized the scripts for convenience and not copyright compliance”. Some other points: “Google’s decision to remove some functions and variables but to retain others depending on how it affected performance shows that they were playing fast and loose with copyright.” – no, it shows that you have an axe to grind.

“Some who criticized my analysis relied on cases in which an abstraction-filtration-comparison analysis was used, but, as Judge Alsup’s order recognized, that approach is used when the issue is the copying of non-literal elements. It doesn’t generally apply to instances of literal copying like this one. See Lotus Development Corp. v. Borland International Inc., 49 F.3d 807, 814-15 (1st Cir.
1995).”
First of all, Judge Alsup had not ordered something like “Google copied”. It just refused to grant a preliminary injunction on the copyrightability of APIs, and this is due largely to the problem of conflicting presentation of APIs from Oracle and Google (inclusive versus exclusive). And the Lotus v. Borland was not considering the AFC test because… it regarded USER INTERFACES. Not Application Programmer Interfaces. Naughton kindly sweeps the issue under the carpet, as it would remove the filtration test… and filter out much of his white paper.
In fact, all the rest is unnecessary drivel designed to demonstrate the strength of his analysis: “To be sure, the WordPress situation involved different technical details than the kernel headers, but…” (but what?)

“I have practical concerns as well: Google’s approach, if it works, provides a roadmap for bypassing the GPL, as well as a relatively simple set of customizable scripts that could allow easier exploitation of GPL components by proprietary programs. An easy bypass of GPL protections runs contrary to what FOSS advocates stand for, and I certainly would not have expected such an uncritical defense of Google.” Where, oh where, is this kind of thing possible? The author takes something that is possible for headers only, takes his own view of Google as a dastardly stealer of code, and takes it to the next level: “see! If we don’t stop them now, they will find a way to clean GPL code as well as headers! We’re doomed, like Tivo!”

I tried to write down a response that did not involve biological paraphrases, but I failed. Let’s say that the argument is not his strongest point.

(footnote: I don’t care particularly for Google, I have no financial interest for them, but I respect the contributions they made to OSS.)

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