Copyleft-next and the kernel [LWN.net]

Copyleft-next and the kernel

Posted Jul 14, 2021 13:58 UTC (Wed) by Paf (subscriber, #91811)
In reply to: Copyleft-next and the kernel by smoogen
Parent article: Copyleft-next and the kernel

This is a pretty standard debate, I think, pretty similar to authorship itself - how much do you need to change/add before you can claim copyright in something of which you are not the originator?

There’s no simple answer.

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Copyleft-next and the kernel

Posted Jul 14, 2021 20:10 UTC (Wed) by NYKevin (subscriber, #129325) [Link] (1 responses)

Well, there is an answer, it's just not an answer that anyone wants to hear: "Go to court and the judge will tell you."

But as a rule of thumb, the threshold of originality is generally quite low. If you just fixed a typo, you probably can't claim copyright on the fix alone. If you (re)wrote or substantially refactored* a whole function, you probably can claim copyright on that.

* You might argue that refactoring should not be eligible for copyright protection because it makes no functional change to the software. This is incorrect. Copyright does not care at all about functionality, and "it's functional" is in fact an argument *against* copyright protection (e.g. you might not be able to copyright a "hello world" program, because there's usually only one reasonable way to write such a program). Copyright protects the creative expression of an idea or concept (but not the idea or concept itself); refactoring code to make it clearer or easier for a human to understand is definitely the right sort of work to merit copyright protection. The only thing that matters is scale: whether you refactored enough code and made enough changes to that code.

Copyleft-next and the kernel--originality

Posted Jul 21, 2021 5:04 UTC (Wed) by carORcdr (guest, #141301) [Link]

Originality is a constitutional requirement. Constitution of the United States, Art. I. sec. 8[8], 1 Stat. 10; Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 US 340 (1991); The Trade-Mark Cases, 100 U.S. 82 (1879). Some minimal degree of creativity is requred. Feist Publications.

"Refactoring" is not reflected in the Law of the Land, but compilations and derivative works are. Pub. L. 94-553 [sed. 103], 90 Stat. 2541, 2544 (1976). It is only that portion of the 'refactoring' that is original to the author. Feist.