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

Linus Torvalds
2007-06-17T00:59:23Z

On Sun, 17 Jun 2007, Bron Gondwana wrote:
>
> No, I'm arguing that it's not "mere aggregation" - the kernel is useless
> on that machine unless the BIOS is present or replaced with something
> else with equivalent functionality.

That's *not* a valid argument!

I know, I know, it's a common one, but it is *nonsense*.

The thing is, "mere aggregation" doesn't mean what you think it means.

"Mere aggregation" doesn't mean that they cannot depend on each other. It
means that they are not *based* on each other in the sense of GPLv2.

In other words, "mere aggregation" is about two pieces that are not
derivative works under copyright law.

For example, on a Red Hat DVD, *every*single*binary* on that DVD requires
a kernel to run on. And the kernel image itself "depends" on the user
programs to actually do something _useful_.

But it's all still "mere aggregation", because they are not related to
each other in the sense of being derived works!

So "mere aggregation" is not about intimacy. OF COURSE high-tech products
depend intimately on each other. The Linux kernel cannot boot on a PC
without a BIOS or something equivalent. You cannot run your graphical
environment without a kernel, an X server, the CPU, the memory, the
display, the BIOS, the power company (or an equivalent hand-crank) etc etc
etc, and these things are all very much dependent on each other to make a
"usable system", that has absolutely _zero_ relevance to whether they are
"mere aggregation" or not.

So the only thing the "mere aggregation" phrase in the GPLv2 means is
simply: "putting together two or more pieces that are not derived works of
each other". That's what that

mere aggregation of another work not based on the Program
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

part of the license is all about. The BIOS is "another work", and it
clearly is "not based on the Program". The "aggregation" just means
"putting them together", and the "mere" is there just to show that as far
as the license is concerned, that is not even interesting!

In other words, the sentence in section 2 about mere aggregation says one
thing only: the fact that you lump things together storage-wise does not
matter *at*all* for the license. The _only_ thing that matters for the
GPLv2 is whether something is a derived work, _not_ whether it is lumped
together, and depends on something else.

This is why the BIOS is irrelevant. You can put it in the same flash chip
as the kernel: it still isn't a derived work of Linux (and Linux is not a
derived work of the BIOS), and the GPLv2 explicitly makes it clear that
the license holds no sway over the BIOS, even though it's physically on
the same chip.

The BIOS can do whatever it wants to, and the GPLv2 has *nothing* to say
about it. The GPLv2 makes that very clear indeed. It is just "mere
aggregation", and the fact that they are in the same machine, on the same
harddisk, on the same flash rom, or on the same DVD doesn't bring them any
closer from a *copyright* angle.

Copyright in general (and the GPLv2 in the specific) isn't about how
things are *physically* tied together. It's not even about how things
interconnect, and how "important" they are for each other. It is _purely_
about whether they are derived works.

So when the GPLv2 talks about "mere aggregation", it talks about it
specifically to say that it does not matter, and that the license _only_
affects the actual derived work!

This is why the BIOS, the hardware, the programs you run under Linux etc
etc are all totally irrelevant. The GPLv2 explicitly says that they are
irrelevant as far as that license is concerned.

Linus