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

From: Daniel Hazelton
Date: Fri Jun 15 2007 - 17:16:21 EST

On Friday 15 June 2007 15:37:04 Alexandre Oliva wrote:
> On Jun 15, 2007, Daniel Hazelton <dhazelton@xxxxxxxxx> wrote:
> > On Friday 15 June 2007 02:59:31 Jesper Juhl wrote:
> >> it doesn't say anything about being able to run a compiled version
> >> of that source on any specific hardware.
> >
> > And you are correct. It is also clear, thanks to language directly
> > in the GPLv2 itself, that there is no "intent" of the license to
> > cover that situation.
> You're again confusing legal terms with the intent. The legal terms
> provide an indication of the intent, but the preamble, along with the
> free software definition it alludes to, do an even better job at that.

And the preamble, not being part of the active portion of the license, has
absolutely *ZERO* bearing. Just as it is not the *intent* of RMS, the FSF or
*ANY* person (or legal entity) that had a hand in crafting the GPLv2 or GPLv3
which is looked at when determining the "intent" of the license. It is the
intent of the person and/or "legal entity" that has placed their work under
said license.

What is so hard to understand about that ?

> That said, the letter of the GPL explicitly says that the act of
> running the program is not restricted, and that this is outside the
> scope of the license. It's a copyright license, and per US law,
> running software is not regulated by copyright; this is not so
> elsewhere, and local interpretation indicates that the intent of the
> license is indeed to grant unlimited permission to run the program and
> modified versions thereof, based on the free software definition.

And that may be what courts in Brazil believe, independent of the fact that
the license itself *intentionally* limits itself to "copying, distribution
and modification". That legal decision, in fact, may not have been motivated
by the actual belief that that was the intent of the license - it could (and,
from looking at the situation and available facts, might actually have been)
motivated by political reasons.

> But then, when someone says "I won't let you run modified versions of
> this software on this hardware I'm selling you", is this not a further
> restriction on the exercise of the rights granted in the license?

In Brazil, because the courts there have rendered a judgment that the license
requires the unlimited running of the covered work. But that is *unfairly*
applying a license on a piece of software to the hardware on which it runs.
Based on your logic the hardware manufacturer would have to enable people to
run code compiled for an entirely different processor. Not that it matters in
the least.

> And, per the spirit, if the manufacturer can still install and run
> modified versions of the software on that hardware, is it not failing
> to comply with the spirit of passing on all the rights that you have?

Not in the least. They have the rights to "copy, modify and distribute"
the "source code for a work". That is *EXACTLY* the set of rights they have
to the code, and it is *EXACTLY* the set of rights they pass on. The GPL does
not apply to any *BINARY* form of the work, except for the fact that you are
required to provide the source code that was used to generate the binary.

The GPL *clearly* defines "source code" as:
"the preferred form of the work for making modifications to it"
It goes on to state:
"For an executable work, complete source code means all the source code for
all modules it contains, plus any associated interface definition files, plus
the scripts used to control compilation and installation of the executable."

(Note that, since the "signing" of the TiVO kernel is part of the installation
they *should* be including the script that does the signing. However, since
the SHA1 key that is part of the signing process is *not* a "script" (even in
the loosest possible definition of the term) they do not have to provide it.)


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