Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

[Bernd Paysan <bernd.paysan@gmx.de>]

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On Thursday 14 June 2007 17:39, Al Viro wrote:
> On Thu, Jun 14, 2007 at 10:23:20AM +0200, Bernd Paysan wrote:
> > A number of kernel hacker deliberately want their work under GPLv2 only
> > (like Al Viro), and they are fully entitled to do that - but they must
> > announce it in a propper place (not lkml or lwn.org)
>
> A court deposition if somebody tries to do relicensing.  At that point
> I believe that I made myself sufficiently clear, so I really doubt that
> "all files without explicit license get the license defendant would like
> and not the one located in the tree" would fly.  But you are welcome to
> test that, of course - will make for nice punitive damages.

If I test it, it would be in Germany, and I really doubt that relicensing 
one copyleft to another can ever cause puntative damages here. You are only 
entitled to collect damages here when you have actual losses (that's why 
Harald Welte never gets a dime except for his defense expenses and 
voluntary donations to the FSF), but you can demand compliance. That would 
basically mean that the hypothetical linux-something.subversion-bp with 
GPLv3 parts in it can't be shipped further, because I can't fulfill all my 
obligations.

It's probably completely hypothetical, but if I really liked to be nasty, I 
could release the blackfin sound driver I've written for our digital 
amplifyer under GPLv3 or later. The code I've modified is explicitely under 
GPLv2 or later.

> Just make 
> sure to test it yourself - giving somebody else an advice that will land
> them in trouble is not nice...

As a non-lawyer, I can't give anybody legal advice in Germany, and I'd like 
to extend that to the rest of the world. This is my opinion, my 
interpretation of the GPLv2 and what's my logical reasoning what these 
three lines on top of /usr/src/linux/COPYING really mean. And there are 
only two possibilities:

* Either it means what it says, then it's quite likely a copyright 
infingement done by Linus to all those authors of linux-2.4.0-test8 and 
before, and you all may need to stop distributing Linux*, since you can't 
meet your obligations (and restart from linux-2.4.0-test8, which is the 
last legal version), or

* it does not exactly mean what it says, then you still can distribute 
Linux, but you can't really stop anyone who's updating it to GPLv3 - except 
for those few files that have explicit version numbers assigned.

BTW: If I grep through Linux, I find two files where you have noted your 
copyright and the release conditions (GPL v2), and I think last time I did 
the same thing, I found two GPLv2-files, as well - all other files with "Al 
Viro" in it apparently have multiple authors. These two files may be the 
same ones, or maybe there are two other files, making it four in total (or 
some further I missed, the text of v2 only is not as normed as the text 
for "v2 or later", but in general it's rare). These files clearly have to 
be rewritten or premission has to be asked when updating COPYING to GPLv3. 
But that's not a show-stopper.

Example, to test the legal issue:

/usr/src/linux/drivers/net/bmac.c

is Copyright (C) 1998 Randy Gobbel, and was modified by you in 1999, and has 
no specific GPL license. That's both before 2.4.0-test9, so without the 
implied "v2 only" of the "tree root". If I take this file up to GPLv3, what 
can you do against it? Nothing. What can Randy Gobbel do about it? Nothing, 
either. If you claim, it's "v2 only", Randy Gobbel could do something (e.g. 
asking puntative damages from you in the US, or denying you the right to 
redistribute Linux further, because you don't fulfill your obligations).

*) e.g. Microsoft lawyers will hunt down all pre-2.4.0-test9 copyright 
holders and pay the one who's willing to stop Linux a billion.

-- 
Bernd Paysan
"If you want it done right, you have to do it yourself"
http://www.jwdt.com/~paysan/

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