While I’m still ailing I’m taking the time to sort through and throw away tons of papers. I found the Summer 2002 issue of Boston Review, an interesting lefty journal, which included my comment (“Common Property?“) on a really silly rant against several property by David Bollier. The whole symposium is available online: “Ruled by the Market?”
You sure told him.
In your article, you seem to imply that the Linux kernel is in the public domain. I don’t think that’s the case.
The situation, as I understand it, is this:
Each version of the Linux kernel source code can be considered the outcome of a series of code additions and modifications. Each addition or modification is called a “patch.” It may be that some patches have been dedicated to the public domain, but in most cases, a patch is owned by someone.
The maintainers of the Linux kernel source will accept a patch only if it is legally offered to them on terms that allow them a) apply the patch to the Linux source, and b) still offer the Linux source to the public under the terms of the GNU General Public License (GPL).
So the parts that constitute the whole are owned by various people. What about the whole itself? Do the Linux kernel maintainers have ownership rights over the intelligent arrangement of parts that they are offering?
Maybe they could assert such ownership, but as far as I can tell they don’t. The COPYING file, which contains the GPL and is distributed with the Linux source, has a preface by Linus Torvalds which states, “[T]he GPL below is copyrighted by the Free Software Foundation, but the instance of code that it refers to (the Linux kernel) is copyrighted by me and others who actually wrote it.”
So their position seems to be: we are in possession of this code. You can copy it from us, but only if you abide by these conditions (the GPL). We don’t own the code, but the various people who do have given us permission to offer it to you on these terms.
I am not a lawyer, but it seems to me that this arrangement makes it hard to sue people for using the Linux source in a way that violates the license. As a lawyer for the Free Software Foundation puts it, “[D]espite the broad right of distribution conveyed by the GPL, enforcement of copyright is generally not possible for distributors: only the copyright holder or someone having assignment of the copyright can enforce the license. If there are multiple authors of a copyrighted work, successful enforcement depends on having the cooperation of all authors.” (See http://www.gnu.org/licenses/why-assign.html )
Anyway, that’s how I understand the ownership issues surrounding the Linux kernel. If I’m wrong about any of the foregoing, I hope someone will correct me.
Thanks, Russell. My understanding (gained right after the essay appeared) is that you’re precisely right. I was a bit imprecise in my writing; my primary aim was to point out that Linux is not “owned by the American people,” which was an assertion of Bollier, but I should have more carefully distinguished a case such as Linux from, say, the legend of Robin Hood, which is not owned by anyone, as no one has the right to exclude another from telling or using the story. Had I shown the piece to someone more knowledgeable about software engineering and law, I’m sure that he or she would have caught that error. As it is, you’ve done the job quite well. Thank you!
I wrote, “So the parts that constitute the whole are owned by various people. What about the whole itself? Do the Linux kernel maintainers have ownership rights over the intelligent arrangement of parts that they are offering? Maybe they could assert such ownership, but as far as I can tell they don’t.”
In retrospect, that was a dumb thing for me to say. In most cases, the person contributing the “part” is the one who figures out how to fit it in the whole. The “patch” is his instructions for making changes to the whole. An “intelligent arrangement” is part of what he’s contributing. So it makes sense that the Linux maintainers don’t try to assert any ownership rights over the whole.
By the way, not all GPL software projects allow contributors to retain ownership. Projects run by the Free Software Foundation, for example, require their contributors to turn over their copyrights to the Foundation. By owning what it distributes, the FSF figures it can more easily enforce the GPL.