Tuesday, November 15, 2011

Linus Torvalds cries 'bogus' too often and too easily -- but the gullible believe him

I'm starting to see a pattern. For any intellectual property issues facing Linux (or at least the most popular Linux derivative, Android), Linus Torvalds has a standard answer at hand: after admitting that he doesn't know the facts, he claims that "this [whatever it may be] seems completely bogus." Or, interchangeably, "totally bogus".

If he did this only in private conversations, there would be nothing wrong with it. Everyone may opine on anything, with or without conducting in-depth analysis. But an authority like Linus Torvalds doesn't act responsibly by repeatedly giving interviews that are as ignorant as they are assertive. He may not mean to mislead anyone, but the problem is that there's no shortage of people out there who think that he's the ultimate authority on anything Linux-related (such as Android) from whatever angle.

I truly admire his achievements. His brainchild is not only ubiquitous but also a key competitive force. Seven years ago, Linus Torvalds officially supported a statement against software patents that I had drafted. But more recently I was disappointed at two interviews in which he dismissed Android-related intellectual property issues that require a lot more thought, and may ultimatly have further-reaching ramifications, than he is willing to admit:

  • In March 2011, he told ITWorld's Brian Proffitt that an analysis according to which Android's incorporation of Linux kernel header material raises copyright and, consequently, GPL copyleft issues "seems totally bogus", even though he admitted that he hadn't "looked at exactly what Google does with the kernel headers".

  • Toward the end of a videotaped 40-minute interview with Muktware editor Swapnil Bhartiya at the recent LinuxCon Europe, Linus Torvalds was asked about Oracle's intellectual property infringement lawsuit against Google and said that he "[doesn't] actually know all that much about that", but nevertheless stated that "it seems to be completely bogus" (minute 39).

The problem is that both of these intellectual property issues are serious and deserve a lot more thought. If someone doesn't want to spend the time to understand them, there's no way anyone can be forced to speak out.

API copyrightability requires case-by-case analysis

Concerning the first issue, I strongly recommend this recent blog post by intellectual property litigator Edward Naughton of the Brown Rudnick firm and, even more so, his 15-page White Paper entitled "Bionic Revisited: What the Summary Judgment Ruling in
Oracle v. Google Means for Android and the GPL". That analysis makes reference to Judge William Alsup's near-complete denial of Google's motion for summary judgment against Oracle's copyright infringement claims. Google had argued that the Java APIs aren't copyrightable as a matter of law. In fact, Google wanted another bite at the apple and very recently asked for permission for another motion on summary judgment on the asserted non-copyrightability of Oracle's Java APIs, but yesterday the judge told Google (as well as Oracle) that he would leave this kind of question ot the jury.

One can argue that a denial of a summary judgment motion asking for one particular declaration doesn't necessarily mean that the opposite of that declaration is true. Fair enough. But as Edward Naughton explains in his analysis, the way Google makes use of Linux header material in Android is legally based on the assumption that all such material is, by definition, not copyrightable. If such a sweeping assertion is a cornerstone of an IP strategy, its proponent must be able to win on summary judgment -- a jury trial comes with considerable case-by-case uncertainty. The same applies to Linus Torvalds's dismissal of any related issues as "totally bogus".

As I noted, the ruling in Oracle v. Google is related to the Java APIs, not to the Linux APIs. But a general claim of certain material, regardless of its size and its arrangement, being uncopyrightable must be true for all APIs or it's simply not reliable. Also, I have looked at many Java API files and many Linux API files, and the case for copyrightability appears considerably stronger in the case of the Linux header material used in Android's Bionic library than in the Java case. If Google can't even defeat a claim of copyrightability with respect to 37 Java API files, how can it do so for more than 700 Linux header files? Also, the Linux header files contain inline functions that are particularly likely to be copyrightable, and I didn't see Oracle raise a similar argument in its Google lawsuit.

Google's own developers didn't believe that Oracle's claims are bogus

Linus Torvalds's assessment that Oracle's lawsuit is "bogus" is belied by Google's own internal analysis. In August 2010, the same month in which Oracle brought its lawsuit, Google engineer Tim Lindholm wrote a now-famous email in which he said that Google "need[s] to negotiate a license for Java".

In the Muktware interview, Linus Torvalds makes reference to a blog post by Jonathan Schwartz. In an analysis of the state of Google's 20 affirmative defenses against Oracle's complaint, I also commented on Google's equitable defenses and said that the related blog post doesn't look to me like a license grant or a waiver of any right. I'm sure that if Judge Alsup thought the related blog post was a basis for dismissal of the entire lawsuit, he'd have done so a long time ago in order to save court resources.

There's never a guarantee for the outcome of a complex litigation, and as I said more than once, Oracle will have to prove its infringement claims and fend off Google's attacks on the validity of the asserted intellectual property rights. That will require some highly technical analysis. I doubt that Google can defeat all of Oracle's claims, but it will be up to the jury. That still doesn't mean that Oracle's accusations are "bogus".

There's no doubt that most of Oracle's patents-in-suit are under reexamination pressure, and it remains to be seen how many of the asserted patent claims will ultimately be affirmed. First Office actions are, however, only preliminary, so it would be premature if anyone wanted to defend Linus Torvalds's "bogus" assessment on the basis of those ongoing reexaminations.

I have asked Scott Daniels, an experienced patent litigator and author of the WHDA Reexamination Alert Blog, whether he thinks the current state of those reexaminations indicates that Oracle's lawsuit doesn't raise serious issues. This is what Scott said:

"[...] I cannot believe that the law suit is contrived or bogus. It is easy for parties to settle and end District Court litigation. But peaceful resolution of a reexamination is not normally possible. Even where the inter partes requester decides not to participate, the PTO [Patent and Trademark Office] continues the reexamination on its own. Here, even if Oracle settled with Google, the Oracle patents would continue to be at risk in reexamination. And the risk is not confined to the specific prior art references and arguments presented by Google in its Requests. The PTO is free to reshape Google's arguments and to assert additional references. Moreover, a third party could be provoked to enter the fray by filing its own reexamination requests that would likely be merged with the Google reexaminations. The fact that the reexaminations are beyond the control of the parties suggests, to me, that the conflict is real."

The above quote may seem complicated to many people, and one could devote a whole blog post to the issues it addresses. But that's not necessary in this context to show that there are complicated and serious issues on the table -- as opposed to "bogus" claims.

Some open source leaders see SCO in everything

The simplest explanation of Linus Torvalds's attitude -- and a reasonably likely one to be true -- is that some open source luminaries appear to suffer from SCOphobia: after they experienced the Santa Cruz Operation's lawsuits over allegations of copyright infringement by Linux, they now think that there must always be some enemies of Linux at work whenever intellectual property issues facing Linux (and its derivatives, such as Android) come up.

Knee-jerk reactions are not a substitute for thorough case-by-case analysis. Whatever one may think of the merits of SCO's case, the Bionic issue (Linux headers) and Oracle's lawsuit are unrelated to it.

In closing, I would like to quote a very good point that now-assistant law professor Sapna Kumar made at a June 2007 TriLUG (Triangle Linux User Group) meeting -- you can find that statement after 12:20 in this YouTube video:

"What the GPL is isn't what Richard Stallman tells you it is. It isn't what Eben Moglen says it is or what I say it is. It's really what judges say it is."

And I would add that the GPL isn't what Linus Torvalds says it is. Even bogus isn't what Linus Torvalds says it is.

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