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

Linus Torvalds
2007-06-15T22:59:55Z

On Sat, 16 Jun 2007, Ingo Molnar wrote:
>
> btw., still ianal, but the GPLv2 is not a "contract" but a "pure
> copyright license".

I've been told by several independent sources that it really doesn't
matter.

The "pure license" argument was born largely for silly reasons: people
claimed (a _loong_ time ago) that the GPL wasn't enforceable in the US
because in order to be enforceable, something of value has to change hands
(in the US, for example, it would be common to "sell" something for a
nominal sum of $1 USD rather than to give it outright, to "seal the deal"
and make it irrevocable).

That's generally considered a specious argument, apparently. In most
jurisdictions in the US, a license and a contract are judged to be legally
exactly the same thing, and if you don't follow the GPL and have no other
contract to show for it, you're in violation of federal copyright law, so
whether it is a license or a contract really doesn't matter.

So it's true: the GPL just gives you rights, and without it you have no
rights (other than fair use ones etc), and blah blah. But the distinction
between "license" vs "contract" really isn't a very important one in any
case.

> Furthermore when you get source code of free software then there is no
> "meeting of minds" needed for you to accept the GPL's conditions, and
> only the letter of the license (and, in case of any ambiguities, the
> intent of the author of the code) matters to the interpretation of the
> license, not the intent of the recipient. (while in contract cases both
> the meeting of minds is needed and the intent and understanding of both
> parties matters to the interpretation of the contract.)

I do agree that you can probably use this to say that the intent of the
copyright has a stronger position, and that his "intent" thus matters
more.

But I suspect that the "intent" angle is fairly weak legally to begin
with, and if you cannot show that the intent was mutual, it's probably
weaker still. So yeah, the intent of the copyright owner arguably might
matter more, but quite frankly, I suspect everbody is better off not
worrying so much about "intent", and worrying more about the "terms and
conditions" part.

(I've said several times that intent _matters_, I just don't want people
to think that it matters a whole lot).

What is pretty clear, though, is that the intent of a third party in the
license/cotnract matters not at all. In the case of the kernel, the FSF
being such a third party.

Linus