Tuesday, June 1, 2010

An Open Letter to Brett Smith

I've sent the following email to Brett Smith, the FSF's Licensing Compliance Engineer, with some questions I have about the recent FSF enforcement action against the Apple iTunes App Store

Dear Brett:

I've been analyzing the recent enforcement action by the FSF against the Apple iTunes Store, and wondering about the implications for other "app stores" which I seem to be finding in the reasoning you describe in your blog postings.

1) You specifically call out point (i) of Apple's App Store Usage Rules, which specify that you must accept the prevailing third-party license (in the case of GNUgo, the GPL) as well as the App Store's own Terms of Use.

Is it simply the requirement to accept terms above and beyond those in the GPL which, in and of itself, constitutes a violation? Would the required pre-acceptance of _any_ terms or conditions constitute a violation?

2) In examining the Terms of Service for Google's Android Market, I find some interesting issues in there. §2.4 specifies that

"From time to time, Google may discover a Product on the Market that violates the Android Market Developer Distribution Agreement or other legal agreements, laws, regulations or policies. You agree that in such an instance Google retains the right to remotely remove those applications from your Device at its sole discretion."

As we have seen today, Google removed some dozen or more trademark-infringing "Tetris" applications from their Android Market, and also from the phones of the users who purchased such applications. This is completely in accordance with the terms of service one is obligated to accept as a pre-condition of obtaining application from the Android Market.

I believe that—in spite of the language in §4.2, which specifies that, in the case of a "conflict" with a third-party license, the third-party license terms would take precedence—Google would be obliged to forcibly and unilaterally remove even GPL-licensed applications under a variety of circumstances.

A hypothetical example:

I write an Android application which is an MP3 and MP4 player. For whatever reason, rather than using the codecs built into Android, I use "free" (unlicensed) MP3 and MP4 codecs, which happen to be GPL-licensed. I place the app in the Android store, under a GPL license.

You are a US citizen, and get a copy from the Android store. The legitimate holders of the MP3 and MP4 patents sue me, and advise Google that they're doing so, as the app clearly infringes their patents.

I do not believe that §4.2 of the Google Android Market agreement is possibly going to trump §2.4, in a case like this.

In other words, the fact that the program is licensed under the GPL would not, I believe, keep Google from yanking it off your Android phone, and the phone of anyone else who had obtained a copy. I doubt Google is going to be willing to foot the damages associated with being a party to a clear case of willful patent infringement to maintain the freedom of the General Public License. This would constitute a pretty clear insistence that users abrogate their right to "Freedom Zero", and it's difficult for me to understand how such a situation would not constitute a violation of the GPL.

Do you agree with this analysis, and with the conclusion that the Android Market is equally in violation to the extent that it hosts GPL-licensed applications?

3) Very similar problematical language to that found in Apple's and Google's various Terms of Service can also be found in the terms and conditions associated with the Microsoft "Windows Marketplace for Mobile". On the assumption that my general reasoning here is correct, is it reasonable to expect that the FSF will next be conducting enforcement actions against Google and Microsoft?

4) Why did the FSF not apparently undertake a similar enforcement action against the developer of GNUgo, Robota Softwarehouse, who marketed the program for some time, evidently, while having only a comment on their site claiming that source would be available "next week"?

Thanks very much for any help you can provide in answering these questions.


David "Lefty"Schlesinger

UPDATE: I had gotten a report that Tetris apps were removed from Android phones as well as from the market before I wrote this, and have since received a conflicting report in the comments. In any case, I stand by my reasoning around the hypothetical example: that case would certainly be one in which Google would find itself obliged to unilaterally remove a GPL-licensed app from a third-party user's phone.
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