Licensing & copyright of kernel .config files (defconfig, *config)

Licensing & copyright of kernel .config files (defconfig, *config)

[Robin H. Johnson]

(Please CC me on replies, not subscribed to LKML)

Hi,

Somewhat of an odd question, but none of the files in question seem to
have a copyright header on them...

For a kernel .config file, either from one of the defconfig or any other
*config option that automates the answer:
1. What license does the file fall under?
2. Who are the copyright holders?

Naively, since the defconfigs are bundled with the kernel, that could
fall under GPLv2-only implicitly, but lacking any explicit copyright
headers makes this interesting (arch/*/configs/* contain lots of files,
no copyright headers on them).

If I manually write the names of some configuration options to a new
.config file, at that point I logically am the only author and have
copyright of it. My editor slaps a default license on it of BSD-2.
Thereafter I run olddefconfig, and now it's a combined work of the
kernel's defconfig and my manual settings. If GPL-2 was inherited from
the kernel tree, this is now a combined BSD-GPL2 work, or is it? The
kernel config tools did consider my file as input, possibly overrode the
settings if they didn't work with others, and re-output everything.

If the files are to be marked with a copyright header, who is the holder
of it that it should be attributed to?

Alternatively, is this a case where the work is not copyrightable, and
the files should have a notice to that effect?

Background:
Gentoo has a bunch of "stock" kernel configurations for release
engineering, our initramfs tool (genkernel), and other endeavors over
the years. These projects claim BSD, GPL2, LGPL2 on various pieces, and
I don't think they can all be correct. I'm working on getting them into
one place, because some of them have been getting stale, but the
differing licenses raised a red flag to me.

-- 
Robin Hugh Johnson
Gentoo Linux: Developer, Infrastructure Lead
E-Mail     : robbat2@gentoo.org
GnuPG FP   : 11ACBA4F 4778E3F6 E4EDF38E B27B944E 34884E85

Re: Licensing & copyright of kernel .config files (defconfig, *config)

[David Lang]

I am not a Lawyer

But I would start asking the same questions about these files that we ask about 
header files.

Is there anything in the file that is not functionally required? (I believe the 
answer is no, everything there is required to be what it is to make the kernel 
work)

The only possible grounds for copyright would be a claim that deciding which 
things to select and which things to not select is a "creative" work.

Given that the only value in selecting or not selecting something is to make 
things in the kernel work, I'm not sure that would pass muster. But if it did, 
that would make the copyright be owned by the person who made those selections.

David Lang


On Sun, 1 Jun 2014, Robin H. Johnson wrote:

> (Please CC me on replies, not subscribed to LKML)
>
> Hi,
>
> Somewhat of an odd question, but none of the files in question seem to
> have a copyright header on them...
>
> For a kernel .config file, either from one of the defconfig or any other
> *config option that automates the answer:
> 1. What license does the file fall under?
> 2. Who are the copyright holders?
>
> Naively, since the defconfigs are bundled with the kernel, that could
> fall under GPLv2-only implicitly, but lacking any explicit copyright
> headers makes this interesting (arch/*/configs/* contain lots of files,
> no copyright headers on them).
>
> If I manually write the names of some configuration options to a new
> .config file, at that point I logically am the only author and have
> copyright of it. My editor slaps a default license on it of BSD-2.
> Thereafter I run olddefconfig, and now it's a combined work of the
> kernel's defconfig and my manual settings. If GPL-2 was inherited from
> the kernel tree, this is now a combined BSD-GPL2 work, or is it? The
> kernel config tools did consider my file as input, possibly overrode the
> settings if they didn't work with others, and re-output everything.
>
> If the files are to be marked with a copyright header, who is the holder
> of it that it should be attributed to?
>
> Alternatively, is this a case where the work is not copyrightable, and
> the files should have a notice to that effect?
>
> Background:
> Gentoo has a bunch of "stock" kernel configurations for release
> engineering, our initramfs tool (genkernel), and other endeavors over
> the years. These projects claim BSD, GPL2, LGPL2 on various pieces, and
> I don't think they can all be correct. I'm working on getting them into
> one place, because some of them have been getting stale, but the
> differing licenses raised a red flag to me.
>
>

Re: Licensing & copyright of kernel .config files (defconfig, *config)

[Ken Moffat]

On Sun, Jun 01, 2014 at 01:43:01AM +0000, Robin H. Johnson wrote:
> (Please CC me on replies, not subscribed to LKML)
> 
> Hi,
> 
> Somewhat of an odd question, but none of the files in question seem to
> have a copyright header on them...
> 
> For a kernel .config file, either from one of the defconfig or any other
> *config option that automates the answer:
> 1. What license does the file fall under?
> 2. Who are the copyright holders?
> 
> Naively, since the defconfigs are bundled with the kernel, that could
> fall under GPLv2-only implicitly, but lacking any explicit copyright
> headers makes this interesting (arch/*/configs/* contain lots of files,
> no copyright headers on them).
> 

 I am not a lawyer, but surely _many_ of the kernel files do not
contain any explicit copyright information ?

> If I manually write the names of some configuration options to a new
> .config file, at that point I logically am the only author and have
> copyright of it. My editor slaps a default license on it of BSD-2.
> Thereafter I run olddefconfig, and now it's a combined work of the
> kernel's defconfig and my manual settings. If GPL-2 was inherited from
> the kernel tree, this is now a combined BSD-GPL2 work, or is it? The
> kernel config tools did consider my file as input, possibly overrode the
> settings if they didn't work with others, and re-output everything.
> 

 Why does your editor put a default license on anything ?  In some
cases, it is bound to be wrong.  For example, if you were to ever
submit a kernel patch, in the kernel the license would be GPL-2
although, if you created a new file, you could also license that as
BSD-2 if it was not a derivative of existing kernel code.
Similarly, if you ever create a patch for any other project which
does not use a BSD license, then your patch will have uncertain
status.

 If I was being awkward, I would suggest that the config would not
be useful until you had run it through "make oldconfig" or similar,
and that therefore the kernel license of GPL-2 applies.

> If the files are to be marked with a copyright header, who is the holder
> of it that it should be attributed to?
> 

 Iff the work is copyrightable (I do not have an opinion on that),
surely the license only matters if you breach it ? ;-)  If you
distribute a compiled kernel with the source, and all of that source
is GPL-2, then I assume you are in the clear.  For "extras" which
include binaries without source, my understanding is that you would
always be vulnerable to kernel copyright holders.  So, I suspect
that the attribution of a config file is not particularly important.

> Alternatively, is this a case where the work is not copyrightable, and
> the files should have a notice to that effect?
> 
> Background:
> Gentoo has a bunch of "stock" kernel configurations for release
> engineering, our initramfs tool (genkernel), and other endeavors over
> the years. These projects claim BSD, GPL2, LGPL2 on various pieces, and
> I don't think they can all be correct. I'm working on getting them into
> one place, because some of them have been getting stale, but the
> differing licenses raised a red flag to me.
> 

 To the extent that GPL-2 can include LGPL-2 and BSD, I suggest that
you label them all as GPL-2.  That is the licence of the kernel, and
for practical reasons it will not change (this was discussed when
somebody asked about GPL-3 : even if the main copyright holders
wanted to make the change (and many do not), some copyright holders
are no longer contactable).  You might be able to dual-license some
of these distro files, but I have no idea if that would be appropriate.

ĸen
-- 
Nanny Ogg usually went to bed early. After all, she was an old lady.
Sometimes she went to bed as early as 6 a.m.

Re: Licensing & copyright of kernel .config files (defconfig, *config)

[Robin H. Johnson]

On Mon, Jun 02, 2014 at 12:01:46AM +0100, Ken Moffat wrote:
> > Naively, since the defconfigs are bundled with the kernel, that could
> > fall under GPLv2-only implicitly, but lacking any explicit copyright
> > headers makes this interesting (arch/*/configs/* contain lots of files,
> > no copyright headers on them).
>  I am not a lawyer, but surely _many_ of the kernel files do not
> contain any explicit copyright information ?
On closer inspection, more files than I thought don't have any explicit
copyrights on them. ~67% of files in v3.13 had the text 'Copyright' or
'Licens' appear in them.

>  Why does your editor put a default license on anything ? 
It's my stock header, customized by per-directory vimrc. The
non-project-specific default one actually has a CHANGEME string it in,
to help remind me that it needs an edit before I release that file.
I was just using the BSD license on the file as an example. Submissions
to other open source projects are generally bound by the license of the
project, with a few exceptions (I've put patches into public domain to
avoid signing some CLA-like agreements).

>  If I was being awkward, I would suggest that the config would not
> be useful until you had run it through "make oldconfig" or similar,
> and that therefore the kernel license of GPL-2 applies.
That's the case I was interested in :-).

> > If the files are to be marked with a copyright header, who is the holder
> > of it that it should be attributed to?
>  Iff the work is copyrightable (I do not have an opinion on that),
> surely the license only matters if you breach it ? ;-)  If you
> distribute a compiled kernel with the source, and all of that source
> is GPL-2, then I assume you are in the clear.  For "extras" which
> include binaries without source, my understanding is that you would
> always be vulnerable to kernel copyright holders.  So, I suspect
> that the attribution of a config file is not particularly important.
I agree with your reasoning if I was distributing kernel sources or
compiled kernels, but this is going to be a package of kernel
configurations only.

> > Background:
> > Gentoo has a bunch of "stock" kernel configurations for release
> > engineering, our initramfs tool (genkernel), and other endeavors over
> > the years. These projects claim BSD, GPL2, LGPL2 on various pieces, and
> > I don't think they can all be correct. I'm working on getting them into
> > one place, because some of them have been getting stale, but the
> > differing licenses raised a red flag to me.
>  To the extent that GPL-2 can include LGPL-2 and BSD, I suggest that
> you label them all as GPL-2.  That is the licence of the kernel, and
> for practical reasons it will not change (this was discussed when
> somebody asked about GPL-3 : even if the main copyright holders
> wanted to make the change (and many do not), some copyright holders
> are no longer contactable).  You might be able to dual-license some
> of these distro files, but I have no idea if that would be appropriate.
If the rest of the logic is correct, then the non-GPL2 license on these
files was never valid in the first place; they inherited GPL2 from the
kernel from the get go, and I don't need to be concerned about the
hassle of formally relicensing them by contacting the authors of the
configs (which again, aren't always contactable anymore).


-- 
Robin Hugh Johnson
Gentoo Linux: Developer, Infrastructure Lead
E-Mail     : robbat2@gentoo.org
GnuPG FP   : 11ACBA4F 4778E3F6 E4EDF38E B27B944E 34884E85

Re: Licensing & copyright of kernel .config files (defconfig, *config)

[David Lang]

I'm not seeing where there is a problem, unless you are trying to assume that 
you have no right to distribute them at all.

there is no source for the .config file, it is the source. so when you 
distribute it, you are complying with any distribution requirements.

it could be argued that distributing the kernel requires distribution of the 
.config, but that's been violated so much that it's hard to see anyone worrying 
about it (and it's best practice to distribute it anyway, and trival to make it 
be part of the kernel via /proc)

what is it that's worrying you and causing the need to question the licenseing?

David Lang

On Sun, 1 Jun 2014, Robin H. Johnson wrote:

> On Mon, Jun 02, 2014 at 12:01:46AM +0100, Ken Moffat wrote:
>>> Naively, since the defconfigs are bundled with the kernel, that could
>>> fall under GPLv2-only implicitly, but lacking any explicit copyright
>>> headers makes this interesting (arch/*/configs/* contain lots of files,
>>> no copyright headers on them).
>>  I am not a lawyer, but surely _many_ of the kernel files do not
>> contain any explicit copyright information ?
> On closer inspection, more files than I thought don't have any explicit
> copyrights on them. ~67% of files in v3.13 had the text 'Copyright' or
> 'Licens' appear in them.
>
>>  Why does your editor put a default license on anything ?
> It's my stock header, customized by per-directory vimrc. The
> non-project-specific default one actually has a CHANGEME string it in,
> to help remind me that it needs an edit before I release that file.
> I was just using the BSD license on the file as an example. Submissions
> to other open source projects are generally bound by the license of the
> project, with a few exceptions (I've put patches into public domain to
> avoid signing some CLA-like agreements).
>
>>  If I was being awkward, I would suggest that the config would not
>> be useful until you had run it through "make oldconfig" or similar,
>> and that therefore the kernel license of GPL-2 applies.
> That's the case I was interested in :-).
>
>>> If the files are to be marked with a copyright header, who is the holder
>>> of it that it should be attributed to?
>>  Iff the work is copyrightable (I do not have an opinion on that),
>> surely the license only matters if you breach it ? ;-)  If you
>> distribute a compiled kernel with the source, and all of that source
>> is GPL-2, then I assume you are in the clear.  For "extras" which
>> include binaries without source, my understanding is that you would
>> always be vulnerable to kernel copyright holders.  So, I suspect
>> that the attribution of a config file is not particularly important.
> I agree with your reasoning if I was distributing kernel sources or
> compiled kernels, but this is going to be a package of kernel
> configurations only.
>
>>> Background:
>>> Gentoo has a bunch of "stock" kernel configurations for release
>>> engineering, our initramfs tool (genkernel), and other endeavors over
>>> the years. These projects claim BSD, GPL2, LGPL2 on various pieces, and
>>> I don't think they can all be correct. I'm working on getting them into
>>> one place, because some of them have been getting stale, but the
>>> differing licenses raised a red flag to me.
>>  To the extent that GPL-2 can include LGPL-2 and BSD, I suggest that
>> you label them all as GPL-2.  That is the licence of the kernel, and
>> for practical reasons it will not change (this was discussed when
>> somebody asked about GPL-3 : even if the main copyright holders
>> wanted to make the change (and many do not), some copyright holders
>> are no longer contactable).  You might be able to dual-license some
>> of these distro files, but I have no idea if that would be appropriate.
> If the rest of the logic is correct, then the non-GPL2 license on these
> files was never valid in the first place; they inherited GPL2 from the
> kernel from the get go, and I don't need to be concerned about the
> hassle of formally relicensing them by contacting the authors of the
> configs (which again, aren't always contactable anymore).
>
>
>