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SubjectRe: GPL V3 and Linux - Dead Copyright Holders

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

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

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).

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