Has Bionic stepped over the GPL line? [LWN.net]

Has Bionic stepped over the GPL line?

Posted Mar 23, 2011 17:26 UTC (Wed) by rgmoore (✭ supporter ✭, #75)
In reply to: Has Bionic stepped over the GPL line? by mjg59
Parent article: Has Bionic stepped over the GPL line?

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.

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