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
On Wed, 2006-02-01 at 11:59 +0100, Jan Braunisch wrote:
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.
What matters is the intent of the authors in the end, and that note makes it clear.
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?
The kernel as a whole is distributed under the terms of the GPLv2 license. Some parts of it may have a different license on their own, you should contact the author of such code to determine if they are under any other license. No license on the file do NOT mean Public Domain. By default copyright is very restrictive and all rights are resrved for the author if not stated otherwise (and that's what the COPYING file do in the kernel).
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.
No, the Authors clearly stated that only v2 applies for the kernel as a whole, again single files may be under a different license (GPL compatible), and so, some of them may be under a GPL version that allow them to be used with the future GPLv3 license. Again to determine it you should really contact the authors of the files and ask them.
ciao, Simo.
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.
No, the Authors clearly stated that only v2 applies for the kernel as a whole, again single files may be under a different license (GPL compatible), and so, some of them may be under a GPL version that allow them to be used with the future GPLv3 license. Again to determine it you should really contact the authors of the files and ask them.
What if I take the kernel from before that notice was added? Then there would be nothing at all specifying that only the GPL v2 should be used.
I also would also like to poit out that the GPL under section 0 says:
This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License.
Such a notice is not present for most of the files in the kernel sorce.
What if Torvalds would add want to relicense Linux under the GPL v3, could he change the COPYING file without the permission of all the people that have added code to the kernel without specifying a license?
On Wed, 2006-02-01 at 16:44 +0100, Jan Braunisch wrote:
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.
No, the Authors clearly stated that only v2 applies for the kernel as a whole, again single files may be under a different license (GPL compatible), and so, some of them may be under a GPL version that allow them to be used with the future GPLv3 license. Again to determine it you should really contact the authors of the files and ask them.
What if I take the kernel from before that notice was added? Then there would be nothing at all specifying that only the GPL v2 should be used.
It really depends on what's written on the COPYING file before that, I'm not sure.
I also would also like to poit out that the GPL under section 0 says:
This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License.
Such a notice is not present for most of the files in the kernel sorce.
Yes, but I think it is safe to assume they are under the GPL as well, or otherwise they would not be redistributable.
What if Torvalds would add want to relicense Linux under the GPL v3, could he change the COPYING file without the permission of all the people that have added code to the kernel without specifying a license?
I suppose, he would be able to change only it's own code, other developers would need to agree to change their own. And before you ask, it is an all or nothing, as the GPLv3 draft is incompatible with GPLv2.
Simo.
simo wrote:
I suppose, he would be able to change only it's own code, other developers would need to agree to change their own. And before you ask, it is an all or nothing, as the GPLv3 draft is incompatible with GPLv2.
It's nearly all or nothing, kernel developers can choose to license under gpl 2 or later.
Of course the whole kernel can then be distributed under 2, until they all say 2 or later at which point some can say 3 or later and make the switch.
Sam
Jan Braunisch wrote:
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.
No, the Authors clearly stated that only v2 applies for the kernel as a whole, again single files may be under a different license (GPL compatible), and so, some of them may be under a GPL version that allow them to be used with the future GPLv3 license. Again to determine it you should really contact the authors of the files and ask them.
What if I take the kernel from before that notice was added? Then there would be nothing at all specifying that only the GPL v2 should be used.
indeed.... and all those pro GPL3 developers can let you take their patches. The trouble is patches are often re-worked during application; whose patches are they then?
I also would also like to poit out that the GPL under section 0 says:
This License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License.
Such a notice is not present for most of the files in the kernel sorce.
What if Torvalds would add want to relicense Linux under the GPL v3, could he change the COPYING file without the permission of all the people that have added code to the kernel without specifying a license?
It was said that the COPYING file signifies the authors intentions. I think we need to ask if many of the kernel developers ever had any intention relating to gpl2/gpl3 at all.
I've contributed snippets to the kernel under another name and I never had any particular intention. (Someone else signed them off, it was post-SCO)
Sam
No, the Authors clearly stated that only v2 applies for the kernel as a whole, again single files may be under a different license (GPL compatible), and so, some of them may be under a GPL version that allow them to be used with the future GPLv3 license.
If the GPLv2 applies to the whole kernel, then it applies to all files, single files cannot get special treatment. See section 2(b) of the GPL.
Alfred M. Szmidt wrote:
No, the Authors clearly stated that only v2 applies for the kernel as a whole, again single files may be under a different license (GPL compatible), and so, some of them may be under a GPL version that allow them to be used with the future GPLv3 license.
If the GPLv2 applies to the whole kernel, then it applies to all files, single files cannot get special treatment. See section 2(b) of the GPL.
Single files can get special treatment individually when not part of the whole collection.
2(b) does not prevent the offering alternative licenses. Where such alternatives conflict with GPL2 (as GPL3 does) those files cannot be distributed under license of GPL3 with the GPL2 files.
What might stop them being individually distributed is that they may be derivative works of some of the GPL2 only files, so although what you say is not absolutely true it is probably true for the kernel where most files are partial derivative works of another file and the kernel is not a linked aggregation of seperate units.
Sam
Single files can get special treatment individually when not part of the whole collection.
We were talking about single files in the collection, these cannot get special treatment. If they are not part of the collection, then of course. Sorry for being unclear.
I.e. if I take a file from Linux with no blurb, then the GPLv2 applies. If I would find this same file, then whatever license on that file applies; if no license, no rights what so ever.
What matters is the intent of the authors in the end, and that note makes it clear.
What matters is the law and the license. The intent is irrelevant. If the law and the license allows me to do something, it doesn't matter how much the copyright holder claims that his intent was something else.
(Sorry for the double answer, I forgot about this part)
In my opinion, this is not a valid way to license software under the GPL.
This isn't a valid way to license software period. The Linux kernel is in legal mud waters. There are many files in it that violate the GPL, but since nobody is capable of enforcing the copyright of Linux, nobody can really do anything.
What rights do I have to use the source code in the kernel tree which has not specified a license?
If you take it out from Linux, then GPLv2, since that is how the whole kernel licensed. If you would find the file alone somewhere, then it depends on the notice in the license. If no notice, no right to even look at it.
Nobody can change the license of Linux, there are thousands of copyright holders, and to be able to do such a license change, you need to have _all_ copyright holder to agree to the change. This is impratical.
Cheers.