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Has Bionic stepped over the GPL line?Has Bionic stepped over the GPL line?Posted Mar 21, 2011 2:50 UTC (Mon) by rgmoore (✭ supporter ✭, #75)In reply to: Has Bionic stepped over the GPL line? by jmm82 Parent article: Has Bionic stepped over the GPL line?
I think your response is reasonable, but if I recall correctly, the Linux kernel does not have any form of copyright assignment and therefore all contributors per se are copyright holders. #include <ianal.h> But copyright holders in what? The assumption that everyone seems to make is that Linux would be treated as a compilation, where individual authors hold copyright on their specific contributions. So somebody who only worked on network drivers wouldn't be able to claim that their copyright had been violated by Google using kernel headers. Somebody could claim, though, that Linux is actually a collaboration, where everyone who worked on it would have a share in the copyright on the whole. That makes some sense, since the whole thing can be compiled into a single binary. Nobody knows for sure which theory of copyright would hold in practice, since the issue has never been litigated. I doubt that anything with a copyright situation anywhere close to as complicated as Linux's has ever been completely litigated. Even if the collaboration theory held, a judge might rule that a specific author's contributions were small enough that the violation was de minimus and dismiss a suit for that reason. I'd certainly expect standing to be a big issue in any copyright violation suit involving Linux.
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Has Bionic stepped over the GPL line? Posted Mar 21, 2011 3:00 UTC (Mon) by mjg59 (subscriber, #23239) [Link]
My loose (and, obviously, I am not a lawyer) understanding is that under US law the kernel could be considered either a joint work or a collective work. In a joint work I believe that any copyright holder could enforce the copyright of the entire work - but the flipside of that is that any copyright holder could also grant a non-exclusive license to anyone else, absent contractual obligations. In that case anyone holding copyright on a portion of the kernel could grant permission for the entire kernel to be used under terms other than the GPL.
It seems more likely that the kernel would be considered a derivative work, ie one in which each author only holds copyright over their specific contributions. I don't know that that's ever been tested in court, but nor am I busy establishing a business case for licensing the kernel to Microsoft in return for a couple of yachts.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 6:08 UTC (Mon) by FlorianMueller (guest, #32048) [Link] I don't want to comment on your view of US law, but I would like to stress that it's not just about that one jurisdiction. The question is whether Google is safe in the fastest as well as the most difficult jurisdiction that represents a significant market. I just recently researched and reported on the seizure of 300,000 PlayStations in Europe. That decision was achieved within a few days, and on a legal basis that doesn't have an equivalent concept in the US (the closest thing there would be an ITC proceeding, which takes 16-18 months however). It's an example of how someone who seeks to assert rights may just pick the most convenient place. The PlayStation seizure was based on the alleged infringement of intellectual property rights. (In this case, the seizure order was lifted -- lucky Sony.)
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 18:39 UTC (Mon) by rahvin (subscriber, #16953) [Link]
And the decision was vacated a short time after they were seized and all the consoles impounded were promptly released back to the manufacturer for distribution in the EU. So now your FUD is that it's dangerous in Europe, where's the evidence? The EU case law? You are citing a paper prepared on the basis of US law and citing it against EU precedent. Now that's out there.
Has Bionic stepped over the GPL line? Posted Mar 23, 2011 17:26 UTC (Wed) by rgmoore (✭ supporter ✭, #75) [Link] My loose (and, obviously, I am not a lawyer) understanding is that under US law the kernel could be considered either a joint work or a collective work I'm not sure if the kernel would wind up being considered exclusively one or the other. It would be perfectly reasonable to consider each individual source file a joint work (what I called a collaboration) of the people who contributed to that individual file, while the source tree as a whole would be considered a collective work (what I called a compilation). Since the compiled kernel is a derivative of the whole source tree (delta any files that are configured out), it would be a joint work of all contributors. And, of course, there are other little twists to consider. If I contributed a file 10 years ago that's still in the kernel, but all of the original code has been gradually ripped out and replaced, do I still have a valid copyright interest in the current version of the file? Does it matter if some of the comments I included in the original file, like a description of the file's purpose, are still there? What if the functions were taken out of the file, moved to other files, and later replaced; do I have some interest in the files that once contained functions I wrote? Does it matter if the functions were replaced before or after they were moved? This is potentially important if it turns out there are legal problems with my contribution, e.g. it's not really my work but copied from some other, GPL incompatible work. It's possible that there's a legal precedent describing something like that, but as IANAL I don't know the answer. In a joint work I believe that any copyright holder could enforce the copyright of the entire work - but the flipside of that is that any copyright holder could also grant a non-exclusive license to anyone else, absent contractual obligations.On the second part, the GPL would probably constitute the "contractual obligations" that would keep any author from relicensing willy-nilly. Anyone who contributed after the code was put under the GPL did so pursuant to that license; they're only allowed to make contributions with the understanding that the whole will be licensed under the GPL. That probably forbids them to relicense the work as a whole under other terms.
Has Bionic stepped over the GPL line? Posted Mar 21, 2011 9:39 UTC (Mon) by ekj (guest, #1524) [Link]
True. So the only thing you can say is that an author who wrote a specific piece *certainly* has standing to complain about violations affecting the piece he wrote.
Either he has standing because he wrote that specific part, or he has standing because he holds joint copyright on the kernel as a whole.
This particular muddling is nonsense though. Worse than that, it's like nonsense for several distinct reasons, any ONE of which would be sufficient.
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