Android and the GPLv2 death penalty

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First: please bear in mind while reading the following that your editor is not a lawyer and couldn't even plausibly play one on television.

Earlier this year, Jeremy Allison gave a talk on why the Samba project moved to version 3 of the GNU General Public License. There were a number of reasons for the change, but near the top of his list was the "GPLv2 death penalty." Version 2 is an unforgiving license: any violation leads to an automatic termination of all rights to the software. A literal reading of this language leads to the conclusion that anybody who has violated the license must explicitly obtain a new license from the copyright holder(s) before they can exercise any of the rights given by the GPL. For a project that does not require copyright assignment, there could be a large number of copyright owners to placate before recovery from a violation would be possible.

The Samba developers have dealt with their share of GPL violations over the years. As has almost universally been the case in our community, the Samba folks have never been interested in vengeance or "punitive damages" from violators; they simply want the offending parties to respect the license and come back into compliance. When the GPL was written to become GPLv3, that approach was encoded into the license; violators who fix their problems in a timely manner automatically have their rights reinstated. There is no "death penalty" which could possibly shut violators down forever; leaving this provision behind was something that the Samba team was happy to do.

Android phones are capable devices, but they still tend not to be shipped with Samba servers installed. They do, however, contain the Linux kernel, which happens to be a GPLv2-licensed body of code with thousands of owners. Those who find it in their interest to create fear, uncertainty, and doubt around Android have been happy to seize on the idea that a GPL violation will force a vendor to locate and kowtow before all of those owners before they can ship the kernel again. There can be no doubt that this is a scary prospect.

One should look, though, at the history of how GPL violations have been resolved in the past. There is a fair amount of case history - and a much larger volume of "quietly resolved" cases - where coming into compliance has been enough. Those who have pursued GPL violations in the courts have asked for organizational changes (the appointment of a GPL compliance officer, perhaps), payment of immediate expenses, and, perhaps, a small donation to a worthy project. But the point has been license compliance, not personal gain or disruption of anybody's business; that is especially true of the kernel in particular.

Harald Welte and company won their first GPL court case in 2004; the practice of quietly bringing violators into compliance had been going on for quite some time previously. Never, in any of these cases, has a copyright-holding third party come forward and claimed that a former infringer lacks a license and is, thus, still in violation. The community as a whole has not promised that licenses for violators will be automatically restored when the guilty parties come back into compliance, but it has acted that way with great consistency for many years. Whether a former violator could use that fact to build a defense based on estoppel is a matter for lawyers and judges, but the possibility cannot be dismissed out of hand. Automatic reinstatement is not written into the license, but it's how things have really worked.

There is an interesting related question: how extensive is the termination of rights? Each kernel release is a different work; the chances that any given piece of code has been modified in a new release are pretty high. One could argue that each kernel release comes with its own license; the termination of one does not necessarily affect rights to other releases. Switching to a different release would obviously not affect any ongoing violations, but it might suffice to leave holdovers from previous violations behind. Should this naive, non-lawyerly speculation actually hold water, the death penalty becomes a minor issue at worst.

So Android vendors probably have bigger worries than post-compliance hassles from kernel copyright owners. Until they get around to that little detail of becoming a former violator, the question isn't even relevant, of course. Afterward, software patents still look like a much bigger threat.

That said, your editor has, in the past, heard occasional worries about the prospect of "copyright trolls." It's not too hard to imagine that somebody with a trollish inclination might come into possession of the copyright on some kernel code; that somebody could then go shaking down former violators with threats of lawsuits for ongoing infringement. This is not an outcome which would be beneficial to our community, to say the least.

One would guess that a copyright troll with a small ownership would succeed mostly in getting his or her code removed from the kernel in record time. Big holders could pose a bigger threat. Imagine a company like IBM, for example; IBM owns the copyright on a great deal of kernel code. IBM also has the look of one of those short-lived companies that doesn't hang around for long. As this flash-in-the-pan fades, its copyright portfolio could be picked up by a troll which would then proceed to attack prior infringers. Writing IBM's code out of the kernel would not be an easy task, so some other sort of solution would have to be found. It is not a pretty scenario.

It is also a relatively unlikely scenario. Companies that have built up ownership of large parts of the kernel have done so because they are committed to its success. It is hard to imagine them turning evil in such a legally uncertain way. But it's not a possibility which can be ignored entirely. The "death penalty" is written into the license; someday, somebody may well try to take advantage of that to our detriment.

What would happen then? Assuming that the malefactor is not simply lawyered out of existence, other things would have to come into play. Remember that the development community is currently adding more than one million lines of code to the kernel every year. Even a massive rewrite job could be done relatively quickly if the need were to arise. If things got really bad, the kernel could conceivably follow Samba's example and move to GPLv3 - though that move, clearly, would not affect the need to remove problematic code. One way or another, the problem would be dealt with. Copyright trolls probably do not belong at the top of the list of things we lose sleep over at the moment.