Messages in this thread | | | From | "www.Advocati.org" <> | Subject | Contributors can not just rescind the license (Legal Opinion) | Date | Fri, 28 Sep 2018 11:31:32 +0200 |
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CONTRIBUTORS CAN NOT JUST RESCIND THE LICENSE THEY GRANTED UNDER GPLv2. IT IS *COPYLEFTED*
Adrian N. Iliev, Attorney at Law Copyright Researcher www.Advocati.org advocati@gmx.com
Copyright 2018 (C) This Document is GNU Verbatim Copying Licensed
*INTRODUCTION*
A letter from 17.09.2018 by @observerofaffairs titled 'GPL version 2 is a bare license. Recind. (Regarding (future) Code of Conduct Bannings)' https://lkml.org/lkml/2018/9/17/1174,
repeated by another letter from 20.09.2018 by @unconditionedwitness titled 'Re: A Plea to Unfuck our Codes of Conduct' https://lulz.com/linux-devs-threaten-killswitch-coc-controversy-1252/
says:
> Contributors can, at any time, rescind the license grant regarding > their property via written notice to those whom they are rescinding > the grant from (regarding their property (code)). > > The GPL version 2 lacks a no-rescission clause (the GPL version 3 > has such a clause).
*THIS IS ABSOLUTELY NOT TRUE!*
Indeed, GPLv2 does not explicitly state that the License is irrevocable (as, for example, p. 2, §1 in GPLv3 does):
"All rights granted under this License are granted for the term of copyright on the Program, and are irrevocable"
but this is not all, in legal meaning, about the (no-)rescission case.
*TACITLY ESTABLISHED PRINCIPLES*
There are in legal theory, both explicit clauses and tacitly established principles. The second ones can be derived by interpreting the Norm (the License) in its entirety and context. An example for such tacitly established principle is p. 7, §2 in GPLv2:
"If any portion of this section is held invalid or unenforceable under any particular circumstance, the balance of the section is intended to apply and the section as a whole is intended to apply in other circumstances."
In this legal theory understanding, if there is not explicitly written no-rescission clause, we still have to analyze the License in its whole, searching for any rescission instructions (especially if there is not one explicitly regulated there).
*RELATED PROVISIONS IN GPLv2*
Analyzing GPLv2 in our context we have to take in account the following:
1) This License applies "to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License" (p. 0, §1). So once a work have been licensed, it becomes a covered work by this License.
2) When you redistribute any covered work, "the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions" and you nor anybody else "may not impose any further restrictions on the recipients' exercise of the rights granted herein" (p. 6). So if I get a copy of the Linux-kernel running in my GNU/Linux system for example, I receive according p. 6 quoted above the irrevocable right to copy, distribute or modify the covered work.
If you change your opinion and decide to relicense the covered work you have been licensed under GPLv2, you may not affect the rights already received by users, other programmers and the Community as hole.
Furthermore, relicensing your covered work, you have to respect the explicit provision of p. 4 of GPLv2: "you may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License". So you have to respect the rights received according to p. 6 above quoted. You may stop your contribution to Linux or another free/libre project, but *you can not just withdraw the code* you developed in contribution with a project licensed under GPLv2.
Even furthermore, you have to take in account that: "any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License" (p. 4). So if you try to relicense your contributions covered by GPLv2 contrary to GPLv2, you technically will lose your legal rights over your own work. "However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance" (p. 4 of GPLv2).
*THE EXPLICIT PROVISION IN GPLv3*
The explicit provision of p. 2, §1 in GPLv3 about the irrevocability of rights granted by the Licensor is not something new for the concept of Copyleft. It is given for clarification only. Even the GPLv1 has the irrevocability in its spirit – in the Preamble we read this: "General Public License is intended to guarantee your freedom to share and change free software – to make sure the software is free for all its users"; and "to protect your rights, we need to make restrictions that forbid anyone to deny you these rights or to ask you to surrender the rights".
*DIFFERENCE BETWEEN LEGAL TEXT AND PROGRAM CODE*
The program code is almost explicit. Legal text has its explicit meaning but a wider taciturn meaning as well. To analyze and understand a legal norm in its full meaning, you have to take in account its context, the aim of its authors and the principal idea of its establishment. All the GNU Licenses are result of the Free Software Movement and the Copyleft concept. So you have to add the principles of these in the meaning of words if you search for real legal understanding. Linux-kernel is covered by GPLv2. That attaches all these principles to the code contributed in this Great project. Thank you all for this!
*END OF THE DOCUMENT*
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