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Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3

From:  Michael Gerdau <mgd-AT-technosis.de>
To:  Linus Torvalds <torvalds-AT-linux-foundation.org>
Subject:  Re: Dual-Licensing Linux Kernel with GPL V2 and GPL V3
Date:  Sat, 16 Jun 2007 00:06:11 +0200
Cc:  Daniel Hazelton <dhazelton-AT-enter.net>, Alexandre Oliva <aoliva-AT-redhat.com>, Lennart Sorensen <lsorense-AT-csclub.uwaterloo.ca>, Greg KH <greg-AT-kroah.com>, debian developer <debiandev-AT-gmail.com>, "david-AT-lang.hm" <david-AT-lang.hm>, Tarkan Erimer <tarkan-AT-netone.net.tr>, linux-kernel-AT-vger.kernel.org, Andrew Morton <akpm-AT-linux-foundation.org>, mingo-AT-elte.hu
Archive-link:  Article, Thread

> > I find it obvious that the GPL was meant to prevent such to be possible.
> > This is what I mean by the "the spirit of the GPL".
> 
> Umm. It may well have been meant by *rms*. But your argument fatally falls 
> down on the fact that rms has had *nothing* to do with the Linux kernel.

While I raised this argument on the Lunix kernel ML it was not meant
to be valid specifically for it.

My observation in this thread is that almost everybody discusses different
aspects of the same thing and everybody is somehow right. I was trying
to "go back to start" and have the look at the overall picture which in
this case for me is the question what the GPL's spirit is.

Whether and which of it _you_ intended to adopt for the kernel I had
no intention to sencond guess.

> > Living in germany I'm also used to the courts valueing the intention over
> > the exact wording of a contract (a licence after all is a contract). So
> > I _think_ in germany TiVo would have lost a lawsuit if they had tried it.
> 
> Ehh. The intent that matters is not the intent of the person who authored 
> the license, but the intent of the person who *chose* the license.

That seems to imply that we have to deal with myriads of intended meanings,
namely those of all who contributed to the kernel.

I'm pretty sure I don't wish to walk that road. If you want to we'll have
to agree to disagree.

> What matters is *my* intent in *choosing* the GPLv2, not *his* intent in 
> writing it. 

I beg to differ. By adopting _his_ license you adopted his view. If you
don't like that then choose a different license (which obviously you are
free to do).

It's just not feaseable to have something like "my GPL means a different
thing than your GPL".

> But to make it even less relevant: intent really only legally matters when 
> the legal issues are unclear.
> 
> And they really aren't that unclear here.

We have to agree to disagree then.

> > If one wishes to prevent it there are two related questions:
> > - does GPLv2 prevent it ?
> > - if GPLv2 does not prevent it then how can we change it to achieve that ?
> 
> Well, I think it's fairly unquestionable that the GPLv3 does prevent it. 
> 
> So your second question isn't even really interesting. We know the answer. 
> So the only question that is even remotely interesting is the first one.

My second question leaves out whether or not GPLv3 is an acceptable answer
to my second question. While the FSF says it is it is by no means clear
that I will agree -- all I wanted to do is present the situation as I see it.

> Yes, I do agree with that reasoning, but there are *other*, and more 
> direct, reasons than just the FSF's answer to say that the answer to your 
> first question is "no".

Note I only said the FSF seems to say "no". I'm not yet sure I do.

> The fact is, plain reading of the license (which *always* takes precedence 
> over "intent", even in Europe) simply doesn't make what Tivo did illegal.

I disagree and I don't see that plain reading of the license is that
obvious w/r to the SHA1 key because from a certain perspective said key
is required to create a working modification which I'm entitled to under
the GPLv2. I also agree that your perspective has merrit too. I'm simply
not sure which of the above is "correct" (as in agreeable from a judge's
PoV).

Based on that I disagree with your above stmt, at least I don't think
your implication every other reading being outright wrong is false.

This thread IMO clearly shows that apparently it isn't that clear -- far
too many intelligent people do disagree on this IMO not so obvious reading.

> You literally have to read the GPLv2 in ways that are obviously not true 
> to get to any other situation.

I object against the word obvious as an obsolute measure. You have all right
to consider it obvious from your PoV. My PoV may differ and I strongly claim
it being equally valid.

> For example, Alexandre made the same two mistakes over and over in his 
> reading when he tried to argue that the GPLv2 disallows what Tivo did:

I do not agree with everything Alexandre wrote but I do agree with some
parts.

>  (a) The right to modify means "modify in place"
[snip]
> So clearly, the whole "modify in place" argument is simply *wrong*.

I tend to agree and I didn't like it when it was brought up. But IMO that
does not invalidate his position as such.

>  (b) The language in the preamble: "must give the recipients all the 
>      rights that you have" means really *all* the rights and abilities!

I always did imply a "within reason". To me that means "if it is simple
for them to do it and can be simply extended to me as well then they have
to extend it". Handing out a SHA1 key definitely is simple and thus IMO
something I can expect them to do.

I'm aware we have to disagree on this. I'm also aware that this is
subject to the (IMO implied right) to run the modified code on the
original HW, mostly because they can do that very easily (which would
be covered by "within reason").

BTW:
I can easily take the position that from a metaphysical PoV the whole
concept of a copy is an illusion because every copy is in fact a modified
new version (that happens to be rather similar from a certain PoV... but
I disgress and don't really wish to walk that bridge :)

> 	  (a) Again, Red Hat makes DVD's that contain GPLv2'd programs on 
> 	      them. Red Hat is bound by the GPL, so each work they put 
> 	      on the DVD is always under the GPL, and Red Hat *must* give 
> 	      you the rights that the GPL specifies.
[snipped the paragraph on RH "withholding rights]

Here the "within reason" kicks in. And I readily admit that you are an
able intellectual acrobat who can twist arguments such that they become
silly.

My experience with german courts has shown me that the judges I had to
deal with always and foremost did apply a reality check and did not try
to bisect the consequences like an algorithm evaluated by a machine, i.e.
the tried to decide what is right and wrong and not whether the letter
of the contract could be twisted this or that way.

> 	  (b) Again, I make the Linux kernel available to you on a web 
> 	      site, and thus distribute it to you. Do I actually give you 
> 	      *all* the rights I have in it? Hell no. I cannot (and do 
> 	      not even want to). As an author, I have special rights in my 
> 	      code that you do not get. You get the rights spelled out in 
> 	      the GPLv2, and *nothing* more.

I probably haven't read all Alexandre wrote but from what I read I'd be
surprised he'd disagree (I don't).

>      In other words, Alexandre's reading of the text in the preamble is 
>      *impossible*. It absolutely *cannot* be the way the license works. 
>      It's not how Red Hat itself reads it, and it's not how it can even 
>      legally be made to work even if somebody *wanted* to read it that 
>      way.

I don't know whether Alexandre does read to preamble to mean what you
imply he does. But whether he does or not is irrelevant for me to decide
that IMO there is a strong argument to claim that what TiVo did is illegal
even under the GPLv2. Note I'm merely saying "strong argument" as opposed
to "clear beyond doubt".

> > Whether or not the GPLv3 is truely an acceptable answer to prevent
> > Tivoisation is a completely different issue that I can't really judge.
> 
> Absolutely. I do think it prevents Tivoisation, but I personally think 
> it's unacceptable in even *trying* to prevent it, and as I've tried to 
> make clear, the GPLv2 definitely did *not* prevent Tivo from doing what 
> they did.

Well, I think trying to prevent it is totally acceptable, after all I'm
free to impose whatever restrictions to my code I see fit (I think it was
long ago agreed that the GPLv2 does impose restrictions as well; they are
just different).

We have to agree to disagree on both whether trying to prevent Tivoisation
is acceptable and whether GPLv2 already prevents it.

Best wishes,
Michael
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