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

[simo]

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.