Google's purchase of Motorola Mobility might give the company a raft of patents which it can use to defend Android from the likes of Apple and Microsoft, but the company's failure to obey the terms of the GPLv2 could leave the company without a product to defend.
Florian Mueller of the FOSS Patents blog has made the claim that Google, and all the companies who create, distribute, or sell Android-based products are doing so in violation of the GNU General Public Licence at the heart of the software's kernel. As a result, they're doing so illegally.
"Rampant non-compliance with the source code disclosure requirement of the GPLv2 - the license under which Linux is published - has technically resulted in a loss of most vendors' right to distribute Linux," Mueller claims in a blog post sure to light a fire under the heels of Google's lawyers.
"This loss of the distribution licence is irremediable except through a new license from each and every contributor to the Linux kernel, without which Android can't run," claims Mueller. "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 bases his opinion on the case of BusyBox, an embedded Linux variant supplied with numerous commercial network products like routers and firewalls. Lawsuits brought against manufacturers and distributors of BusyBox-based products - including Cisco, Verizon, and retail chain Best Buy - over their failure to provide access to products' source code have resulted almost unanimously in guilty verdicts.
"The situation surrounding most Android OEMs could become quite uncomfortable if any Linux copyright holders driven by greed or other motives team up with copyright lawyers and enforce their rights," Mueller muses. "There are thousands of Linux kernel contributors. In some cases, it would probably be easy to just replace the code they contributed if they seek to enforce their rights, but in other cases, it would certainly take longer than someone's ability to obtain a preliminary injunction somewhere on this planet."
Mueller's belief that almost all Android distributors are doing so in violation of the terms under which its Linux-kernel heart is licensed is based on a particular section of the GPLv2, which reads: "You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this Licence."
It's the 'automatically terminate' section which has Mueller most concerned for the future of Linux. By distributing a product without providing the source code - which violates a core tenet of the GPLv2 - the licence to distribute the GPLv2-licensed code is automatically terminated with immediate effect.
While most Android licensees fail to adhere to the GPLv2, even Google itself can be found in breach of the conditions of the licence: although the source code for previous editions of the purportedly open-source Android platform have been made available, the company has refused to release the code behind its tablet-specific Honeycomb build citing issues with smartphone compatibility.
That refusal to distribute the source makes Google itself in violation of the GPL, and potentially leaves Android in a very sticky position.
Considering that Google has just spent $12.5 billion on acquiring floundering mobile giant Motorola simply to get its hands on the company's vast patent archive as a weapon against those who would litigate Android out of existence, the lack of GPL compliance is likely something Google will need to investigate - and quickly.