glibc is licensed under the LGPL; the LGPL does say you have to give users some rights (e.g. to decompile your binaries), but you can link LGPL libraries against code, make a binary, and not provide the binaries. Google could have cut back glibc headers to only include the interface to Linux, licensed the resulting library / header file set under LGPL, and then built a library that uses that LGPLd library, licensed under whatever terms they want (within the minor restrictions of the LGPL), and that would have been entirely within both the spirit and letter of the LGPL.
> But even if you were to undertake this analysis and > segregate the copyrightable expression from the > non-copyrightable, it doesn’t change the fact that GPLv2 > covers the entirety of the kernel code and any > derivatives of it. Picking and choosing pieces of the > kernel code to include in a new library is creating a > derivative work, and, accordingly, GPLv2 would still > apply".
If Google successfully removed all copyrightable code from the Linux headers, and included only the interfaces, then they wouldn't have to comply with the GPL license for the kernel, because the whole point of the doctrine of fair use is that you can do it without a license. It therefore wouldn't need to license its library under the GPL.
If, on the other hand, the doctrine of merger didn't apply, and it wasn't fair use, they would need a license to distribute the kernel headers. The GPL is the only one available, so they would need to comply with its terms. Their arguments that what Google did wasn't fair use seem to be more coherent, although I haven't checked their claimed facts.