Rumors are flying about HP and their potential GPL violation by not releasing the source code of the Android kernel sold on three Touchpads so far.  Many of them are speculation, much of it over-hyped, but the fact that we speculate points to how many questions go unanswered and how much interest there is in the matter.

A short history for people just tuning in on the issue:  In HP’s Touchpad firesale, three known devices shipped with Android 2.2.  Because the Android kernels and drivers are protected by the GPL version 2, all distributed modifications to the source code must be published if they mass distribute, intended to distribute, or publicly release the device.  HP did not publish their Android kernel modifications, and therefore may be violating the GPL.

There are a few reasons we can’t say they are definitely violating the GPL.  First, leaks don’t count as mass distribution, or as intent to distribute.  This is why, when a few users approached HP about the GPL violation, HP responded, “HP Palm doesn’t support Android and has not authorized anyone to provide consumers with the Android OS for Touchpad.”  Saying there is no intent to distribute is not enough to stave obligations to the general public.  Yet, it’s only 3 devices.  Not only does that not qualify as mass distribution, but it’s such an insignificant number of Android Touchpads that HP has plausible deniability on their side, and obviously imply it’s a leak in their response.  It all depends on why Android was installed those three devices, who installed it–in other words, whether HP is responsible–and whether the truth of the matter qualifies according to GPL definitions.

As far as most people understand it, HP developers were either bored or testing.  They rushed those Touchpads out the door with all the others in the firesale and did not install WebOS.  If the developers were bored, it’s a leak.  Their actions were in no way sanctioned by HP.  If the developers were testing for HP, it’s still a leak because the release was unintentional, but they may be liable.  HP did not deny that they sanctioned the actions of their developers, only that they did not sanction the distribution of that work.  People have to pay for their mistakes too, not just what they intend to do.

Trsohmers, formerly of the TouchDroid team, came to me with a different version of the story.  He says that HP used Android’s Linux foundation in the factory to test for faulty devices.  This isn’t simply speculation.  According to Green, who works with kernels for the CyanogenMod Touchpad team and posts their Touchpad videos on his YouTube channel, the team received an anonymous email that included a state-of-the-art Cypress Semiconductors touchscreen driver and a censored email.  The drivers are hyper-accurate and used to test device limits, so the CM team couldn’t use them.  However, their quality make Cypress Semiconductors undeniably the manufacturer, and the fact that they aren’t something just anyone could have lends credibility to the email.  That is, the driver came from an inside source, and so, therefore, must the email.  The email said this (grammatical errors are original):

In fact before HP refreshing their webOS image, all HP touchpad TSP controller board were used Android to run the MFG procedure. Attached file is the latest TMA395 Android driver. The significant difference is that the HP touchpad TSP controller firmware has no bootloader support so when you want to bring up the device with this driver a little effort need be cost take care of this difference. This job has been done by HP software team before.

The email says it’s not just a sample of devices from each batch, but every Touchpad is loaded with Android in the manufacturing process.  If true, the fact that HP used Android to install WebOS is not a violation of the GPL.  Using GPL-protected code for private use is perfectly legal.  The significance is in the degree to which HP sanctioned the development of Android on the Touchpad.  Still the same rules, three devices is more of a leak than anything, but now HP cannot deny that the sale of the Android Touchpads was their mistake.

Moreover, because you don’t need a license to use Android the way HP did, it’s highly unlikely that they got Android relicensed by Google.  This is further supported by the fact that they didn’t include it in their defense against the public demand for their Android kernel modifications.  So the good news for the general public is that if HP’s mistake can qualify as a GPL violation, it’s extremely unlikely that they have a license to disqualify the violation.

This leaves only a couple steps until HP may be taken to court.  Someone needs to make it legally clear that HP distributed or made public their Android build for the Touchpad, according to the GPL.  We know they distributed them–two were bought at Best Buys in Oklahoma and Texas, and the third was bought from Wal-Mart in New Hampshire.  Whether or not this counts as distribution according to the GPL is what needs legal arguing.

If you have any information to clarify or fill in the blanks of the story, please contact me, or any other news writer.  We respect wishes to remain anonymous.