Can you have a GPLv2-only license?

Can you have a GPLv2-only license?

Summary: With the coming of GPLv3, a few projects, including the Linux Kernel, will need to be expressly relicensed by all of their copyright holders if they choose v3. The question is, were they licensed correctly in the first place?

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TOPICS: Open Source
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My very first try at blogging, and I made a blatant mistake. In talking about the Free Software Foundation’s move from Version 2 to Version 3 of the GPL, I pointed out that Section 9 of Version 2 provided for automatic updating of the license. I said “This means that Linus Torvalds doesn’t have to decide to release Linux under V3, The GPL is a license, not a contract. anyone who has a copy of source code under V2 can release that code under V3!”

This is true of most GPL’d software out there and many components of Linux. However, a few projects have elected to be “Version 2” only and Linux is among them (For discussion see: http://www.uwsg.iu.edu/hypermail/linux/kernel/0009.1/0096.html, http://www.ussg.iu.edu/hypermail/linux/kernel/0208.1/1287.html  and http://people.redhat.com/arjanv/COPYING.modules)

The joy of the interactive – within a few hours I had an email pointing out, strongly, that I was wrong. I hadn’t written that line out of complete ignorance. I knew there was some feeling that Linus Torvalds might not move the Linux kernel to V3. As a lawyer, I checked the license that accompanied the kernel and relied on that document alone. Unfortunately, the license I checked (http://www.kernel.org/pub/linux/kernel/COPYING) turns out to be missing some key text present in other Linux distributions (see http://glide.stanford.edu/lxr/source/COPYING?v=linux-2.6.10 for a ‘correct’ version).

However, now that I have focused on the issue, I think there are some legal complexities. Perhaps interesting only to lawyers, but instructive nonetheless.

Let’s start with the facts:

  • Section 2b of the GPL provides:
“2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:  …
b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
  • Section 6 of the GPL provides:
"6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. ..."
  • Section 9 of the GPL provides:
“9. The Free Software Foundation may publish revised and/or new versions of the General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns.
Each version is given a distinguishing version number. If the Program specifies a version number of this License which applies to it and "any later version", you have the option of following the terms and conditions either of that version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation.
  • Linus’ version of the kernel has a slightly modified GPL which accompanies it. Specifically, the header provides in part:
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.


In my mind, the legal analysis would run something like this:

First, according to the FSF, the GPL is a license, not a contract. It is merely the sole set of permissions under which you are permitted to use, modify, or distribute GPL’d code. By redistributing GPL'd code, you accept the terms of the license. Otherwise, you have no right to redistribute the code, and are subject to suit for copyright infringement.

Pursuant to Section 2b of GPL v2, the GPL licenses you to redistribute GPL’d code (and derivative works of it) only "under the terms of this License"  So, according to Section 2b alone, the only terms you can use for your derivative work are GPL v2.

However, Section 9 provides an additional freedom. It states that "If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation [when you redistribute code]." Nowhere, however, does the GPL give you a right to pick a single version. Instead, in the previous sentence in Section 9, you are given the implied right to limit distribution to "a version number of this License which applies to it and 'any later version'".

Section 6 provides " You may not impose any further restrictions on the recipients' exercise of the rights granted herein." So presumably, if you wish to redistribute code you received under v2, you cannot limit the recipients right to use any FSF license they wish, except that you may limit them to using v2 and "any later version."

None of this permits Linus' language which limits redistribution of the kernel to only v2!

Now, of course, the original author of code can pick any license he or she wishes.  Presumably you can use parts of the GPL or you can use the GPL plus additional terms if you wish. (Although the GPL does provide "Copyright (C) 1989, 1991 Free Software Foundation, Inc. 51 Franklin Street, Fifth Floor, Boston, MA 02110-1301, USA Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed" which means that distributing modified versions of the GPL without permission is, itself, infringement...)

So I’ll read Linus’ header exclusion to mean that for all kernel code of which he is the copyright owner, Section 9 does not apply and, in order to comply with Section 2, any and all derivative works of his kernel code need to be released under GPL v2 only. I don’t know if he got express permission from the FSF to change the GPL in this way, but let’s assume time, acquiescence, and practicality stop any claim there.

However, Linus' language does included the exception“unless explicitly otherwise stated.” Indeed, in rolling out this change to the license, Linus invited “If anybody wants to explicitly state that their code will be valid under any version of the GPL (current or future - whatever they may look like), please send patches to say so for the code in question. ” And, although I haven’t done the search myself, according to debian-legal there are a number of packages in Linux licensed under v2 “or later.” Also, there is the question of whether Linus went back in 2000 to all of the copyright owners who had contributed under v2 prior to 2000 to redistribute the code under the modified license? I know the kernel maintainers are way out in front in controlling copyright issues in the kernel, but that seems to be a fairly daunting task.

Where does that leave us, legally? Well, for Linus’ code, and anything derivative of it, you have to distribute pursuant to version 2 of the GPL alone (“unless explicitly otherwise stated.”) However, for those packages in Linux submitted under classic GPL v2 and their derivatives? You can use any version of the GPL set forth by the FSF – which doesn’t include Linus’ version. The fact that, most likely, Linus’ code is derivative of the base GPL code and vice versa - making the contrary licenses apply to one another? That just makes my head spin.

From a practical standpoint, none of this matters. Linus is the most recognized opinion leader on the GPL’s mainstay product. His opinions will reverberate through the chat rooms, IRC channels, listserves and wikis that give laborious birth to GPL v3. But from a legal standpoint, this is the type of unintended ambiguity that makes it long past time to retire GPL v2 to the licensing hall of fame. v2 is a notoriously unlitigated document, but if it ever were, there would be no way to predict many of the outcomes.

Whether you agree with the FSF's stance on Software Patents or DRM, participate in the comment process being applied to v3 to avoid at least this type of ambiguity at the start.

David G. Rickerby, Esq. is the head of IT Licensing at Choate, Hall & Stewart LLP in Boston, Massachusetts. The opinions stated here are his own and do not represent the views of his firm or his clients. They certainly don't represent legal advice. If you need a lawyer, go get one!


 

Topic: Open Source

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4 comments
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  • I Enjoyed Both Posts

    You should do more blogging.

    Although Linux isn't the only very recognizable GPLed products-

    The GiMP http://www.gimp.org/
    Audacity http://audacity.sourceforge.net/
    Inkscape http://www.inkscape.org/
    The Gnome office Suit http://www.gnome.org/gnome-office/ (Abi Word and Gnumeric)
    CinePaint (FilmGimp) http://cinepaint.movieeditor.com/
    Jashaka http://www.jahshaka.org/

    and though tri-licensed under the MPL/LGPL/GPL...

    http://www.mozilla.com/firefox/
    http://www.mozilla.com/thunderbird/
    http://www.nvu.com/
    http://www.mozilla.org/projects/calendar/sunbird.html

    Are all more visible and have probably a higher user base than Linux. FOSS is more than Linux.
    Edward Meyers
  • False conclusion

    The licence describesthe rights and obligations attached to the licenced programby its author.
    But all it describes there is about what "You", the licenseeare allowed or forbidden to do. However the licence itself does not apply to the original author who, in addition to distributing the software and a copy of the licence terms, also attaches his *OWN* author's copyright, and who is *alone* to decide the exact termsunder which the program may be re distributed by you.

    So,without evenchanging any word inthe licence text, the author just needs to specify in the copyright statement which version(s) ofthe licence, or which alternate licences are applicable to the licenced program.

    So to decice, it's not enough to say that it is licencedunder the GPL.What really rules is the "copyright notice" that indicatesthe year of first publication, the author's name, and the applicable licence. After all, this is not the FSF that releases the program (as it only promotesthe licence).

    So Linus Torvald is right when he chose to release the Linuxkernel under GPLv2 only. He, only, candecide laterwhever it willaccept to licence it also under GPLv3 or other additional licences.

    He may also unlilaterally remove the refererence to GPLv2 from any later version of the Linux kernel he wishes to provide, except for the parts contributed by other authors that persist in keeping their own copyrighted part under GPLv2.

    Linus may also publish *himself* his same own code using a proprietary licence with his *own* copyright notice (this won't remove the validity of existing GPLv2 licences that the community received in the past from Linus or from another licenced distributor). *He* decides, not the FSF.
    PhilippeV
  • Yes

    The GPL clearly enables code to be licensed under a specific
    version - section 9:

    "Each version is given a distinguishing version number. If the
    Program specifies a version number of this License which applies
    to it and "any later version", you have the option of following the
    terms and conditions either of that version or of any later
    version published by the Free Software Foundation. If the
    Program does not specify a version number of this License, you
    may choose any version ever published by the Free Software
    Foundation."

    Linus has chosen version 2 for his contributions.

    However get over it. This topic has been discussed on the kernel
    mailing lists and none other than Alan Cox had this to say:

    "Subject Re: GPL V3 and Linux
    From Alan Cox <>
    Date Fri, 20 Jan 2006 19:45:10 +0000
    On Gwe, 2006-01-20 at 14:34 -0500, Patrick McLean wrote:
    > I don't think the kernel is going to move to v3, it's licensed
    > specifically as v2, this is from the top of COPYING:

    It may well do, or bits of it may well do but it is rather early to
    speculate.

    >> 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.
    >
    > Also, given that several of the copyright holders in the kernel
    are
    > dead, I don't think we will be able to obtain permission.

    It isn't clear that this will be a problem. Very few people
    specifically put their code v2 only, and Linus edit of the top
    copying file was not done with permission of other copyright
    holders anyway so really only affects his code if it is valid at all.

    What finally happens is going to depend almost entirely on
    whether the GPL v3 is a sane license or not and on consensus,
    and it is *way* too early to figure"
    http://lkml.org/lkml/2006/1/20/278

    Relax everybody:-)
    Richard Flude
  • Section 9 doesn't support article's conclusions

    I am not a lawyer, and yet I don't follow the article's conclusions.

    Quoting...
    However, Section 9 provides an additional freedom. It states that "If the Program does not specify a version number of this License, you may choose any version ever published by the Free Software Foundation [when you redistribute code]." Nowhere, however, does the GPL give you a right to pick a single version. Instead, in the previous sentence in Section 9, you are given the implied right to limit distribution to "a version number of this License which applies to it and 'any later version'".


    Section 9 gives interpretation to an author's claim that the particular work be licensed under "GPL." This is to be taken to mean that the user picks the GPL version (the author is not limiting the version usable).

    Section 9 gives interpretation to an author's claim that the particular work be licensed under "GPLv2 or any later version." This is to be taken to mean that the user picks the GPL version so long as it is version 2 or later.

    This is fine. The problem is that the article then seems to use these two cases to imply that the author using GPL can never pick a single particular version.

    Section 9 gives NO interpretation to an author's claim that the particular work is licensed under "GPL version 2." Section 9 imposes no restrictions or makes any claims about such a case.


    If an animal has small ears, it isn't an elephant. If an animal has large ears, it isn't an ostrich. Hence the animal can only have small or large ears (not middle-sized ones). ..I don't think so.
    netnerdo9