Over the past week, there have been stirrings in the Android community about the Linux GNU General Public License (GPLv2) and whether or not original equipment manufacturers have violated the license, thus making them vulnerable to lawsuits from thousands of Linux users. The argument is that OEMs have broken the Linux license terms and so have automatically lost their rights to distribute Linux on their devices. If that were the case, it would be a big problem for Android and the OEMs since Linux is the very foundation that Android is built upon.

But the GPL situation is not so black and white. Can the Linux GPL issue be a problem for the OEMs? Certainly. Is it actually a problem right now? No, and there is no indication that it ever will be. What the argument amounts to is a miniature battle of "he said, she said" between Linux experts against intellectual property attorney and patent experts. While the IP experts make a compelling argument, the Linux and open source community brings reason to the argument.

The argument has been ongoing for a good portion of 2011, but it has gained more widespread attention of late because popular patents blogger Florian Mueller of the Foss Patents blog wrote about it on Monday, which just happened to be when the news broke that Google was buying Motorola for $12.5 billion in what many think is a big move to acquire Motorola's patents. Mueller's post was titled "Most Android vendors lost their Linux distribution rights, could face shakedown or shutdown."

That is a serious accusation, especially levied at the mobile operating system that controls 43.4% of the world market. Here are Mueller's main points:

  • rampant non-compliance with the source code disclosure requirement of the GPLv2 (the license under which Linux is published) -- especially but not only in connection with Honeycomb -- has technically resulted in a loss of most vendors' right to distribute Linux;
  • this loss of the distribution license is irremediable except through a new license from each and every contributor to the Linux kernel, without which Android can't run; and
  • as a result, there are thousands of people out there who could legally shake down Android device makers, threatening to obtain Apple-style injunctions unless their demands for a new license grant are met.

Mueller claims that those positions are the same as taken by two of the most influential open-source agencies, the Software Freedom Conservancy (SFC) and the Software Freedom Law Center (SFLC). Upon close inspection, Mueller's argument is parroting that of intellectual property attorney Edward Naughton, who wrote two blog posts about the issue recently explaining how a certain case surrounding Linux/Unix tool provider BusyBox.

If Naughton and Mueller are correct in their assertions, then Android could be shut down this very minute, world economy be damned. Yet, Mueller is also known to be a bit of an alarmist. He is smart, knows his intellectual property law and has a way with words - that is why people read him and how he holds influence over the IP community. Yet, the open source community advises to take Mueller with a grain of salt.

Long-time Linux and open source journalist Brian Proffitt seemingly calls a spade a spade in his most recent article at IT World when he tackles the arguments made by Mueller and Naughton. Proffitt's post takes the two to task for "arm waving" over this complicated issues. Proffitt exercises a voice of reason to the mania induced by the two intellectual property experts.

Proffitt cites Linux kernel founder Linus Torvalds and SFC executive director (the man who would be in charge of filing charges of GPL violations) Bradley Kuhn as saying that there has not been a single violation reported, and it is questionable as to whether or not the licenses have been violated at all.

"There are, undeniably, compliance issues to address. But compliance issues do not involve full-scale thermonuclear war-style legal injunctions every single time, right out of the gate," Proffitt wrote. "Naughton believes the SFC will sue someone at any moment based on their arguments in the BusyBox case. But the SFC (nor the SFLC) does not spontaneously sue people..."

Kuhn also weighed in on Naughton's newest claims.

"But, nevertheless, this whole thing is not even relevant until someone actually documents a real GPL violation that has occurred. As I previously mentioned, I'm aware of plenty of documented violations (thanks to Matthew Garrett), and I'd love if more people were picking up and act on these violations to enforce the GPL. I again tell Naughton: if you are seriously concerned about enforcing GPL, then volunteer your time as a lawyer to help. But we all know that's not really what interests you: rather, your job is to spread FUD," Kuhn wrote on his personal blog.

What does it all boil down to? The OEMs may be in violation of the GLP by not sharing the code they use in their Android devices, but no one has reported anything and it remains unlikely that anyone will. Is that because Android has become too valuable a property for anyone to really try and take down the system or because there are no real violations actually occurring?

Oracle's suit against Google over the use of Java in Android would be a minor, multi-billion dollar nuisance compared to the headache that would occur if the Linux foundation fell out from under Android.

Yet, the voices of reason prevail. Android is not going anywhere.