From: Bernd Paysan <bernd.paysan@gmx.de>
To: Al Viro <viro@ftp.linux.org.uk>
Subject: Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3
Date: Thu, 14 Jun 2007 18:32:57 +0200
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Cc: Krzysztof Halasa <khc@pm.waw.pl>, linux-kernel@vger.kernel.org
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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=20
one copyleft to another can ever cause puntative damages here. You are only=
=20
entitled to collect damages here when you have actual losses (that's why=20
Harald Welte never gets a dime except for his defense expenses and=20
voluntary donations to the FSF), but you can demand compliance. That would=
=20
basically mean that the hypothetical linux-something.subversion-bp with=20
GPLv3 parts in it can't be shipped further, because I can't fulfill all my=
=20
obligations.

It's probably completely hypothetical, but if I really liked to be nasty, I=
=20
could release the blackfin sound driver I've written for our digital=20
amplifyer under GPLv3 or later. The code I've modified is explicitely under=
=20
GPLv2 or later.

> Just make=20
> 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=
=20
to extend that to the rest of the world. This is my opinion, my=20
interpretation of the GPLv2 and what's my logical reasoning what these=20
three lines on top of /usr/src/linux/COPYING really mean. And there are=20
only two possibilities:

* Either it means what it says, then it's quite likely a copyright=20
infingement done by Linus to all those authors of linux-2.4.0-test8 and=20
before, and you all may need to stop distributing Linux*, since you can't=20
meet your obligations (and restart from linux-2.4.0-test8, which is the=20
last legal version), or

* it does not exactly mean what it says, then you still can distribute=20
Linux, but you can't really stop anyone who's updating it to GPLv3 - except=
=20
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=20
copyright and the release conditions (GPL v2), and I think last time I did=
=20
the same thing, I found two GPLv2-files, as well - all other files with "Al=
=20
Viro" in it apparently have multiple authors. These two files may be the=20
same ones, or maybe there are two other files, making it four in total (or=
=20
some further I missed, the text of v2 only is not as normed as the text=20
for "v2 or later", but in general it's rare). These files clearly have to=20
be rewritten or premission has to be asked when updating COPYING to GPLv3.=
=20
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 ha=
s=20
no specific GPL license. That's both before 2.4.0-test9, so without the=20
implied "v2 only" of the "tree root". If I take this file up to GPLv3, what=
=20
can you do against it? Nothing. What can Randy Gobbel do about it? Nothing,=
=20
either. If you claim, it's "v2 only", Randy Gobbel could do something (e.g.=
=20
asking puntative damages from you in the US, or denying you the right to=20
redistribute Linux further, because you don't fulfill your obligations).

*) e.g. Microsoft lawyers will hunt down all pre-2.4.0-test9 copyright=20
holders and pay the one who's willing to stop Linux a billion.

=2D-=20
Bernd Paysan
"If you want it done right, you have to do it yourself"
http://www.jwdt.com/~paysan/

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