Legal status of Android's Bionic library uncertain

An article discussing the legal issues surrounding the creation of a fundamental Android library has blown up into allegations of copyright infringement. But so far there's no individual or company that is taking that allegation to court.

The article, "Infringement and disclosure risk in development on copyleft platforms", by Raymond Nimmer, Professor of Law at University of Houston Law Center, has opened up a debate on the legal status of Android's Bionic library. In the article, Nimmer looks at the process that the Android developers created to produce the header files for Bionic, a compact alternative to glibc which also includes Android specific functionality.

The build process for Bionic takes the GPL licensed kernel header files and, using a number of Python scripts, reprocesses them to create "clean" header files for Apache licensed Bionic. The reasoning behind the process is detailed by Google in the "Rationale" section of the README.TXT file for the tools. Nimmer points out though that the entire legal status of this process is unclear and that it is dependent on "numerous conflicting licence terms, most of which have never been litigated".

The issues were picked up by Edward J Naughton, who wrote a detailed paper focussing specifically on the Android Bionic library. Naughton, an attorney at Brown Rudnick specialising in IP law, writes in another article that "I have serious doubts that Google's approach to the Bionic Library works under U.S. copyright law", and believes that Google has taken "a significant gamble" in adopting the approach. He also notes Linus Torvald's 2003 posting where he states:

"In short: you do _NOT_ have the right to use a kernel header file (or any other part of the kernel sources), unless that use results in a GPL'd program.
...
BUT YOU CAN NOT USE THE KERNEL HEADER FILES TO CREATE NON-GPL'D BINARIES."

If it were to be found that the Bionic library was in fact created in such a way that it had to be GPL or LGPL licensed, then manufacturers and developers who use Android may have to apply copyleft principles to far more code and applications than they currently do. But the problem with the discussion is that it deals with issues which can only be resolved in a court, and there is, at present, no legal case being brought against Google for violating the licence of the Linux kernel header files.

(djwm)