Google, the LGPL and software patents

LWN got a really interesting article discussing how Google have included H264 and AAC support in their Chrome browser using ffmpeg and the legal discussion that has come from that. It seems Chris DiBona and the Google lawyers have decided they can work around the LGPL by licensing patents for the ‘application’ instead of for the library implementing the functionality in question. Of course most of us would think that if you ship a library as part of your application, it is a part of your application, but Chris DiBona seems to feel that he licensed the H264 codec for use with the bookmarks list of Chrome and not the media engine :)

More seriously though DiBona tries to weasel out of the situation by claiming that the language of the LGPL saying ‘For example, if a patent license would not permit royalty-free redistribution of the Library by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Library. ‘ only applies if there is a specific language in the patent license hindering re-distribution of the code. He even manages to refer to the fact that the FSF made the language on this subject even clearer in the LGPLv3 as proof that his reading is correct. While at the same time claiming that what the FSF thinks about these issues is irrelevant.

Well I guess Chris is right about Google taking their responsibilities very seriously, at least as long as they say what he wants them to say :) Can’t help but feel that Google somewhere along the line went from ‘do no evil’ to ‘we are google, hence no evil can have been done’ which while sounding similar actually are very different.

Funniest part though is that another part of Google, Android, seems to think its not even legally fine to ship a LGPL media framework combined with Apache licensed codecs with their stack. But I guess the Android and Chrome departments have different lawyers, so if we are lucky maybe the Android department ends up suing the Chrome department ;) Or maybe Chris DiBona wakes up and realize he could resolve this issue quickly by combining the Apache licensed H264 implementation in Android with his ffmpeg stack and thus resolve this issue.

15 thoughts on “Google, the LGPL and software patents”

  1. They’re using an open source library for doing some media stuff and they’re paying the patent royalties to the correct people – What the fuck else do you guys want?

    You sound like one of these irrational people that would say libmad can’t be distributed in any form because parts of it are covered by a patent. Honest, just use the code, pay your royalties, and nobody will give a shit beyond that.

    The LGPL and GPL are so ambiguously worded anyways that Google’s lawyers have probably laughed this whole thing off, as they should have.

  2. @Realist: There is nothing irrational about saying libmad can’t be distributed due to parts of it being covered by patents. In a country affected by software patents it is the law, period. You sound like one of those irrational people that would say that if copyright law comes in conflict with patent law, then copyright law becomes void.

    In countries which do not have software patents these problems do not exist of course as there is no conflict of course between the copyright license and non-existing patents.

    So what we guys want is for Google to do what the FSF has meant for the GPL and LGPL to do, encourage people to work for dropping software patents and providing a cost saving benefit if succeeding, since you then suddenly have available cost free code to create your product with, instead of having to create your own.

    And so far the LGPL and GPL has stood up in court every time tested, so I am not so sure the Google laywers are laughing that loud.

  3. I’m too lazy to search for the documents right now, but AFAIK lame and ffmpeg can be legally distributed in source form despite software patents in the USA, because the source code is covered by freedom of speech. IIRC the requirement for license fees only applies to binary distribution.

    Regarding “what the FSF thinks about these issues is irrelevant”: It’s important to acknowledge that there’s not a single FSF opinion. There’s a bunch of people within the FSF who give legal advice and their opinion may differ. Until courts rule about that issue, nothing is set in stone and it’s free for interpretation. That’s why Google’s lawyers may come up with a different interpretation.

    Personally, I think that Google’s habit of collecting personal data is a more pressing issue than stupid patent laws…

  4. @Markus: Well a debate about the legality of shipping source code is an interesting academic debate (and I do happen to agree with you), but no matter what one conclude it doesn’t really solve any real world problems.

    As for the FSF, sure there are different people with different opinions even there, but their opinion on these issues tend to be pretty coherent and the FSF tend to use Eben Moglen as the final arbiter in cases of uncertainty, but I don’t think this is one of them. And the good old strawman of saying ‘nothing is set in stone until the court rule’ mantra is well and fine, but you would hope that Google, who like to portray themselves as a friend of free software and open source, would keep themselves to a higher standard and try to uphold the intent and goals of the licenses and not be a force to try to undermine them.

  5. Personally I see it more like ‘Google is too big to fail on this”. They are clearly trying to work around LGPL, but it is like another workaround is in grey area.

    It is kinda sad they they choose not to do right thing.

  6. Free software that’s patent encumbered is illegal in the USA, period. It’s irrelevant if it’s (L)GPL’ed or if it uses an Apache license or any other Free license (the only difference is that the (L)GPL does explain this reality to users, while other licenses don’t bother. The wording is irrelevant).

    What’s your point?

    1. @Luis: if you use BSD, MIT or Apache style licenses for the patent encumbered code there is no contradiction between the patent requirement and the source code license. There is nothing forbidding or hindering you to create a product using a MIT licensed codec and combine it with a patent license. There are such conflicts for (L)GPL covered code.

  7. I really don’t see how google is being evil in this respect. They may be being foolish. Google is generally pro open-source in general but it’s also not one to put “software freedom” before ease of use. They may be guilty of wishful thinking but on the moral point I agree with @Realist “They’re using an open source library for doing some media stuff and they’re paying the patent royalties to the correct people – What the fuck else do you guys want?”

    Also @Markus re:google collecting “personal” data. That’s a large part of how google services work. They are clearly designed to try to collect data in a way that doesn’t infringe privacy (though there have been problems) and it is always as far as I can see possible to opt-out and if not to simply not use the service. Google offer all of these great free services built significantly on usage data and which have played a big part in transforming the web and people whinge that a database somewhere knows what kind of peanuts they searched for last week.

    I think that the much greater risk to your privacy, to the possibility of fraud etc, is the data people willingly put out there.

    Still, that was a bit off-topic.

    1. @maninalift: in regards to the moral point. Software published under the GPL and LGPL is licensed under those licenses for a reason. These licenses where crafted with a very specific set of technical, political and legal goals. One of those goals was to defeat software patents. So just because a library is ‘open source’ doesn’t mean Google or anyone else has the right to do whatever they want. Open source is not another word for Public Domain. Developers who wants their code to be used in a ‘Public Domain’ fashion tend to choose licenses like MIT, BSD or Apache, not GPL or LGPL. So do the LGPL and GPL create problems when you are in a place with patents? Yes they do. But they do that by design, not due to a mistake.

      So the moral question is, do you feel the license of open source software should be respected? Or should anyone who gets hold of open source software feel free to disregard the license as they see fit?

  8. Realist: “They’re using an open source library for doing some media stuff and they’re paying the patent royalties to the correct people – What the fuck else do you guys want?”

    How about them complying with the fucking licence?

    As Christian points out, just because someone has a patent and can demand an entrance fee from everyone “doing some media stuff” doesn’t mean that those same people can just waive the distribution terms of the software concerned.

    It’s fascinating to see the “pervasive intellectual property” lobby give out their “suit up for the world of business, hippies and hobbyists” message with all its insinuation about people not respecting the “intellectual property” of others, and then in the blink of an eye, more or less suggest that everyone with a patent can effectively take ownership of stuff produced by random strangers.

    As usual in such discussions, “realist” and “pragmatist” are recurring terms which can be distilled to meaning “ethics kept getting in the way”.

    “The LGPL and GPL are so ambiguously worded anyways that Google’s lawyers have probably laughed this whole thing off, as they should have.”

    Yes, I’m sure Cisco’s lawyers felt the same way, too. They’re probably not laughing any more.

  9. Christian, you don’t seem to get it. I’ll try to be very simple:

    I write a codec for the H264 proprietary format. This format is patented and the patent holders haven’t given out a universal, royalty free distribution right to the world. So I license my codec under an Apache license, pay royalties to the right people and distribute it in the USA.

    Legal?

    No. The Apache license (as any Free license), allows the person who receives the code to (among other things) redistribute this code as they see fit. So some user gets the code, modifies it and redistributes it – just as the license allows him to do. Now the patent holders go and sue him for violating their patent rights. And they win (obviously).

    Now the users sues ME for giving him the code under an invalid license, deceiving him in making him believe the code is Free, when it’s not. And he wins (obviously).

    Conclusion: You can’t distribute code that’s patent encumbered under ANY Free license in the USA. It’s illegal. The Free license is invalid because you don’t have the full rights to that code you’re distributing. So you can’t decide to distribute it under a Free license on your own.

    Clear now?

    I repeat: the (L)GPL is _NOT_ imposing this restriction. It is just _warning_ users about this LEGAL restriction. It is saying: Beware, if the code is patent encumbered, you can’t use this license because it would be illegal. The Apache license doesn’t say so, it just assumes that the person knows the laws in his own jurisdiction and won’t do it if those laws don’t permit it.

    So ALL Free software that’s patent encumbered can’t be Free in the USA. It is illegal to redistribute it without explicit permission from the patent holders. You can’t take a Free license out of your ass to distribute it just because YOU payed the royalties for your own distribution. Because by using a Free license you are telling the persons who receives that code that they can redistribute it freely, when they can’t. The Free license it void. Invalid.

  10. @Luis is the second person violating the patents right by distributing software that was given to him with LGPL license? Wouldn’t the patent violation be to actually use the software without paying royalties?

  11. @Luis: What seems to be very clear is that you have no idea how patents get enforced and how they work. I suggest that you do what I been spending the last 5 years of my life doing, speaking with lawyers about the issues.

  12. @Felipe: Yes, technically you need a license from the patent holders to _use_ the software. But that doesn’t change anything. My point is:

    If I give you a mp3 decoder with a BSD license that says that you’re Free to use that software they way you want, I’m deceiving you. You can’t use that software unless you obtain a license from the patent holders.

    In other words, I should give you that software with a license that should include a clause that should say: “In order to use this software you must obtain a license from XXX”.

    But you see, then it wouldn’t be a Free license anymore.

    So in this case, the GPL vs. BSD debate is irrelevant. You can’t use either of them.

    (When a BSD license makes a difference is when a company gets some BSD code (that’s patent encumbered), then pays royalties to patent holders and then distributes that code under a *proprietary* license. This is legal, since BSD license allows relicensing under a proprietary one. But GPL doesn’t allow you to change the licensing terms.)

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