TheRegister got it right when it says most coders are not lawyers and vice-versa and the law is has shade of greys instead of being black and white. The question (pdf), raised by a lawyer named Edward Naughton, is whether Google’s clean up of copyrighted material in the kernel header files for Bionic is good enough to stop GPL from contaminating developers’ code. Google obviously thinks it is, but in the write-up, one can safely says Naughton begs to differ.
If there is doubt about whetheer Bionic headers are clean enough, pragmatic people like me will do what Brian Profitt does, i.e., simply go and ask the head of Linux Kernel, the very people whose copyright is ‘supposed’ to be infringed. If he says no, then I am in the clear, even if he says yes, I probably ask him is it possible to clean up the copyright material to his satisfaction. Regardless of the answer, I put him in touch with Google and let both parties work it out. I won’t go the whole nine yards of writing something up, whether it is position paper, or email, or anything at all. But may be that is because I am a programmer. Other people, including lawyers and Google’s competitions and (dare I say it?) journalist might have a different view.
After reading the write-up, one thing is clear. Naughton is not alleging that simply using the function declaration in header is infringing. In fact, there are plenty of evidence that using the declaration is not. My favorite is a nice judgement I see but forgotten where I had seen it where the judge, after declaring that function names are absolutely necessary to copy to emulate a function and therefore not protected by copyright, turn his attention to parameter names and say while the defendent’s use of the same parameter names as plaintiff goes beyond absolute necessity, but itself is not serious enough to constitute an infringement. He is, however, alleging that the arrangement of function names, the way the macro is written, and other things that appears on the header makes the header copyrightable (I believe he is right on the money) and therefore, Google infringed GPLv2 and by the viral effect of GPLv2 and through Google’s misdeed, all developers using Bionic library will be contaminated and the poor developers are subjected to GPLv2 freedom requirement (seriously incorrect).
One actually wonder why Naughton did not simply pick up the phone and ask Linus first ? After all, he (mis)quoted him in the write up [Full quote and mail here. To Naughton’s credit, he give the full link.]. His failure to investigate and realized Linus position as mentioned has yet to be explained. By quoting Linus, it means he is aware of Linus’ status in kernel development, so why not drop him a line first? That’s common sense after all. If I think someone as big as Google infringes your code the first thing I do is to call you to see whether you agree or not. Even if you think Naughton simply misread the email in the write up, it is a well known that Linus does not consider using the header files ‘as it is’ to write program that calls to the kernel using published method constitute derivative work and thus subjected to GPL. I choose to use the words ‘as it is’ carefully and intentionally.
But perhaps…. that is because I am a developer.
Putting on my lawyer hat, I suppose I can see him raising a nice discussion topic on copyright law and an important topic: With macros and other stuff on the header, is it possible that under copyright laws, the header is indeed copyrightable? Given that Linus don’t care, this is as best a academic question. It is a good point to start a discussion among law students, or to use it to educate developers on matters of copyright. To cast this potentially letting loose the viral effect of GPL on developers using Bionic without consulting or informing the reader the position of the kernel development team is blatantly unfair. In fact, Prof. Nimmer, in his blog post, touch on the subject of what makes a header file copyrightabale in a way that make it no doubt that his intention is to educate the reader and simulate a debate.
So, after reading the write up, what do I think of it? I agree with Kuhn that it is a shame that it is written as if it is a complete analysis while at best it is presenting a hypothesis for further investigation. May be this is the way lawyers use to write thing. Ask your lawyer for his legal opinion on whether you can legally do this and that, this is the kind of write out they will give you. That is its fatal flaw of the write up. It is not a legal opinion but presented as such.
The best I can describe this write up is it is intended as an advertisement. It is written to showcase Naughton’s skill and specialist knowledge on software and the law in the hope of attracting more business for the law firm. The presentation of the write up itself leaves me with no doubt this is at least one of the intention. I leave it to the reader to decide whether the choice of the topic is unfortunate, or that the PR people or Naughton choose the topic in order to generate the widest coverage.
Anyone paid for the work? I do not know. It is unlike the older days where people tell you the work is paid for by so-and-so. Simply because a write up looks like an advert for a law firm and a lawyer’s service might just be a ploy to disguise the fact that a third party paid for the work.
The connection to Microsoft? This is the technology conspiracy theory wet dream. I stress that I believe Microsoft is an extremely big company and therefore hires the service of a lot of law firms, and any law firms and lawyers will be proud to list Microsoft as client. Thus, simply listing Microsoft as client on CV, website etc does not mean a thing to me.
In fact, if you do have Microsoft as your client, you cannot hide it. Much had been made of the changes in Naughton’s CV just before news of his write up broke around 17th March. Comparing the current one with a Google cached copy on 8 March shows that there where three changes where two were simply the replacement of the word ‘Microsoft’ with ‘Fortune 500 company’. Conspiracy theorist will say Naughton is trying to hide the connection. May be, it is possible. It is also equally possible that Naughton, or someone in the law firm noticed it and in a futile attempt (despite knowing that Google around, it is going to be futile) to try to steer the story away from this Microsoft angle.
More troubling is TheRegister’s chronicle on Naughton’s initial denial when asked whether he “worked for anyone ‘involved’ in the situation”, only admit to had worked with Microsoft when the question was put point-blank to him. His act of updating his CV to change the word ‘Microsoft’ to ‘Fortune 500 company’ in his CV implies very strongly that he knows his work for Microsoft is related to the situation. That childish attempt to sidestep the question initially reminded me of Bill Clinton’s answering ‘No’ to the question posted by Kenneth Starr on whether “He had oral sex with Monica Lewinsky” which is technically correct according to the definition of ‘oral sex’ defined for the lawsuit but is absurd because it implied Lewinsky was the only one having oral sex. Both are futile answers and the truth eventually come out. I don’t buy his argument that he is simply following professional ethnics by trying to keep his relationship with client confidential because he had no problem flaunting it not once but twice on his CV until March 8th at least.
CyberTech Rambler 