Gee, this debate seems to have given some large amount of power to the individual contributors to the kernel. Any individual developer could defect from Linus' stance and work with the SFC on an infringement case. I'm curious to see if any of them are more dogmatic with respect to copyleft.
I suppose it makes sense that features CONFIG_'d off shouldn't be considered for infringement, but for many binary distributions of the kernel it probably still catches a lot of developers.
I always thought it was baloney red tape to do copyright assignments but if it had taken place here it would be a very different debate. The developers would have effectively ceded all control over this discussion to the assignee (who probably would've been The Linux Foundation, if anywhere).