Re: GPL V3 and Linux - Dead Copyright Holders

[Linus Torvalds <torvalds@osdl.org>]

On Tue, 31 Jan 2006, Jeff V. Merkey wrote:
>
> And how many times have you actually stood in front of a Judge over IP and
> contract issues?

Well, at least I know what I'm talking about.

> The language "GPLv2 or any later version" is what it is. You can change 
> it moving forward, but you cannot undo the past. You put this language 
> in there and IT WAS WHAT YOU MEANT AT THE TIME. Trying to alter that 
> would most likely result in a finding you are acting in bad faith.

I did _not_ put that language in, which is the whole point.

That language is in almost all GPL-licensed projects _except_ for Linux. 
It's in the FSF guidelines for what they _suggest_ people will do when 
they license something under the GPL. It's in all the FSF projects, 
obviously, and a lot of other GPL'd projects have also just mindlessly 
copied the FSF-suggested boilerplate.

Linux never did. Linux has _never_ had the "v2 or later" license wording 
in general. Go take a look. The kernel on the whole tends to not mention 
licenses in the individual files, preferring to instead rely on the 
external COPYING file that it is distributed with. That's very much on 
purpose: I personally _hate_ seeing a screenful of crapola that adds 
nothing over and over again.

In short, apart from the very early code in 1991 and early -92 (versions 
0.01 through 0.12), Linux has been licensed with _only_ the GPLv2 license 
file, and normally no mention of "v2 or later" in the actual sources.

And the way copyrights work, you have only as many rights as explicitly 
granted to you, so nobody has _ever_ had rights to re-license Linux under 
any other license than the one it came with: namely the GPLv2. Alan is 
trying to argue that the fact that it has been licensed under the GPLv2 
would somehow "magically" mean that it has been licensed under any version 
of GPL that you can pick, BUT THAT IS AN OBVIOUSLY LEGALLY FLAWED 
ARGUMENT.

It is so obviously flawed that I'm surprised he continues to argue it. 
There has _never_ been anything that says "any version of the GPL", or 
indeed just "the GPL" without any version. The version has _always_ been 
explicit: the kernel comes with the GPLv2 and no other version. If you 
don't accept the COPYING file as the license, then you had no license AT 
ALL to distribute Linux under.

So you have one choice, and once choice ONLY: accept the GPLv2 (as 
reproduced in COPYING) or don't accept the license at all. The option 
that Alan seems to want to do is "I'll take just the word 'GPL' from the 
COPYING file, and then stick to that" has simply never been an option.

Now, I can't stop Alan making stupid arguments. People can argue anything 
they damn well please, whether it makes sense or not. As SCO has shows us, 
people can argue crap for years, even in front of a judge, without any 
actual fact or paper to stand on.

And that is what Alan does. He tries to argue that the kernel has somehow 
magically been released under "the GPL" (without version specifier), even 
though the only license that it was ever released under (apart from the 
original non-GPL made-up-by-yours-truly license) very explicitly says 
which version it is, in big letters at the very top.

The fact that I made it even _more_ obvious five years ago by adding a 
further explanatory notice doesn't change anything at all, except make it 
more obvious.

Alan - talk to a lawyer. Really. Show him this email thread and my 
arguments, and ask him what he believes. I bet you can get a lawyer to 
argue your case if you _pay_ him (lawyers are whores - they are paid to 
argue for their client, not for the law), but ask him what he honestly 
thinks a judge would rule. THEN come back to me.

Because let's face it, the burden on proof on changing the kernel license 
is on _Alan_, not me. Alan is the one arguing for change. 

Now, some individual files in the kernel are dual-licensed. Some of them 
are dual-licensed with a BSD-license, others are "v2 or later version". 
The latter is by no means uncommon, but it's definitely in the minority. 
Just to give you an idea:

    [torvalds@g5 linux]$ git-ls-files '*.c' | wc -l
    7978
    [torvalds@g5 linux]$ git grep -l "any later version" '*.c' | wc -l
    2720
    [torvalds@g5 linux]$ git grep -l "Redistributions in binary form must" '*.c' | wc -l
    230

ie of the C files, only about a third have the "any later version" 
verbiage needed to be able to convert GPL v2 to v3 (and a small minority 
look like they are dual-BSD licensed - I didn't know exactly what to grep 
for, so I just picked a part of the normal BSD license, but they can 
probably also be converted to GPLv3 thanks to the BSD license being a 
strictly less restrictive license).

(I picked just the '*.c' files because that seemed fairer. If you could 
_all_ files, the "any later version" percentage drops even further).

			Linus