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

Ingo Molnar
2007-06-16T07:21:51Z

* Linus Torvalds <torvalds@linux-foundation.org> wrote:

> > 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.

yeah - and from everything i know about this subject the distinction
between contract and license is small and more of a technicality - but
still, it's a nice touch that the "pure license" argument that the FSF
has advanced for a long time (and which it is now more silent about,
given the GPLv3's not so pure structure) neatly defeats the common
argument:

"but, but, when i received the Tivo with GPL-ed software on it the
GPLv2 was not intended to be like that, there is a right to run
modified software on the hardware!"

> 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.

yeah. But the argument goes a bit further: people who chose to _license_
the kernel (by receiving a Tivo for example and downloading its kernel
source) claim that _their_ interpretation of the GPL is that of the
FSF's and that Tivo ought to follow it. The whole "Tivo is cheating the
GPL deal with the end users" line of PR. As far as license
interpretation goes there is _no end user deal_ and the 'end user' does
not even play in terms of intent - only if she choses to be an active
member of the community. That's why i think it's better to talk about a
license than a contract. (even though legally, at least in the US, the
two are quite close to each other.)

so a 'pure copyright license' stresses the point even more that you only
really count in the ecosystem if you contribute in one way or another.
The system should be and _is_ assymetric towards the actual black letter
text of the license and, as a second layer, towards the intent of the
people who actually produced this 1+ billion lines of code,
documentation, bugzilla entries and other nice works. And that is a
thing the FSF is missing sometimes i believe - the "listen to _all_ the
people who enabled this cool stuff" part.

Ingo