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

Linus Torvalds
2007-06-15T18:17:15Z

On Fri, 15 Jun 2007, Carlo Wood wrote:
>
> The point is: can you, or can't you (legally) relicense the whole kernel
> tree under the GPLv3 (or GPLv2+GPLv3)?

No. My special rights do not actually give me those kinds of powers,
exactly because I'm bound by my _other_ agreement (namely the GPLv2) to
follow the license of the code that other people have sent me.

> At first I thought that you cannot, because too many (significant) contributors
> have been involved (and you will never get signatures from them all).
> Then someone surprised me by claiming that the original author had
> copyright for everything - even files added by others.

Both are true facts, but the "copyright for everything" is a *separate*
kind of copyright, which does not include the right to relicense. It's
literally the "copyright in the collective".

For examples of the US rules, see USC 17.2.201(c) ("Ownership of
copyright" and " Contributions to Collective Works"), which spells out
some limited special rights that I have (namely the right to reproduce and
distribute).

Of course, US law being what it is, the USC is just part of the picture.
US law is the strange kind of British law, where "case law" is in many
ways more important than the written-down rules like the USC. So caveat
emptor!

So I have limited special rights in the collective, but those rights are
actually in almost every way *more* limited than the rights that the GPLv2
gives to me (the "almost every way" is because quite frankly, I'm not
entirely sure about certain special cases. In particular, if somebody
tried to _revoke_ the rights to their code under the GPLv2, I suspect that
my rights in the collective would protect me from that and allow me to
still distribute the code in question, since _those_ rights cannot be
revoked, and they are _mine_).

And btw: the above paragraph is *way* more legalistic detail than I am at
all ready to state as "fact". It depends on too many things, and is
largely speculative in nature.

But one thing is pretty clear and nonspeculative: *nobody* has the right
to upgrade the kernel to GPLv3. Not me, not you, not anybody. Not without
clearing it with every single person whose copyright is involved and who
didn't already give that permission.

So only in the case of some really obscure and unclear situations, I _may_
have more rights than some other people, but trust me, but that is damn
murky, and you'd better have a good lawyer state it, not just a programmer
who has talked to too many lawyers..

Linus