Getting grubby with ZFS
Posted Dec 7, 2010 23:56 UTC (Tue) by ewen
Parent article: Getting grubby with ZFS
The FSF is counting on Oracle being bound by the strengthened patent clauses found in GPLv3. But the code found in Solaris was never explicitly distributed under GPLv3; it is under a GPLv2+ license. The code only became explicitly GPLv3 when it was moved into the GNU-run Savannah repository. The FSF is saying that, thanks to the "or any later version" language in the copyright notice, users of the ZFS code can assume that Oracle is bound by the more explicit GPLv3 patent language even though GPLv3 did not exist when the code was released. They are probably right.
(NOTE: I'm just responding to what you say here, I haven't read enough of the backstory to know if the FSF is really saying what you report them as saying.)
If entity A distributes the code under GPLv2+ then it's fair to say entity A agrees to be bound by the GPLv2 license (for that specific distribution), including the option of allowing other people to distribute it under GPLv3 (or later). And if entity B then distributes the code under GPLv3 then entity B agrees to be bound by the terms of GPLv3. But I don't think that it's fair to say (nor do I think a court would say, if pushed) that entity A agreed to be bound by the terms of GPLv3 that are different from GPLv2 (just to allow someone else to so bind themselves). Particularly so when the "or later" GPLv3 license didn't even exist at the time that the original code was licensed/released (courts generally frown on applying things retroactively). So if that's the stated rationale for "patent safety" it seems pretty weak.
That said, I think including in grub the code that was released under GPLv2+, for the purpose of enabling grub booting off ZFS, is probably the correct decision here on balance. In the unlikely event that someone does turn up claiming patent infringement the direct harm is fairly low (a few people with ZFS systems didn't have to pay to boot their system), and things like estoppel may prevent successors in interest of the entity making the original release from acting against people taking advantage of that release.
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