Issues with how the GNU GPL is used for Linux (the kernel)

[Jan Braunisch]

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