Greetings
As you will notice, English is not my mother tongue and therefore i apologize for my English. My name is Jan Braunisch. I am a student from Sweden who is a big fan of Free Software. Sadly I have not contributed code to any project but i have been very active in helping other users of Free Software.
Today I had a discussion in an IRC-channel about the possibilities of Linux being released under the coming GNU GPL v3. I was told that Linux may only be distributed under the GPL v2 and i was told to look at http://lkml.org/lkml/2006/1/25/273 where Linus Torvalds explains that only GPL v2 may be used.
Because I thought this was very strange I decided to take a look at the source code of Linux itself. This is what i discovered:
* Many of the files (about one third of the .c-files) contained the standard text found in most GPL:ed programs and which can be found at the end of the GPL as the recommended way of releasing a program under the GPL.
* Most files had only a copyright notice and nothing about the license used for the software.
* The only thing in the root directory of the kernel source tree containing anything about the licensing of the software was the COPYING file, which only contained a copy of the GPL v2 along with these notes:
NOTE! This copyright does *not* cover user programs that use kernel services by normal system calls - this is merely considered normal use of the kernel, and does *not* fall under the heading of "derived work". Also note that the GPL below is copyrighted by the Free Software Foundation, but the instance of code that it refers to (the Linux kernel) is copyrighted by me and others who actually wrote it.
Also note that the only valid version of the GPL as far as the kernel is concerned is _this_ particular version of the license (ie v2, not v2.2 or v3.x or whatever), unless explicitly otherwise stated.
the second note was added a few years ago only to clarify how the licensing of Linux is to be understood, hence it should not be treated as anything other than a note.
In my opinion, this is not a valid way to license software under the GPL.
Now i have two questions, and i would be extremely grateful if you could answer them for me:
What rights do I have to use the source code in the kernel tree which has not specified a license? Is it released under the GPL, is it in the Public Domain or am I not allowed to do anything with it?
If the code is Free Software under the GPL, may I only use GPL v2 as Linus says or am i allowed to use any version of the GPL if i want to redistribute it, according to "If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation." under section 9 of the GPL.
Best regards
Jan Braunisch