Message-ID: <trinity-e5abacac-deb8-4df8-bee8-30e46d817130-1538127092649@3c-app-mailcom-bs16>
Date:   Fri, 28 Sep 2018 11:31:32 +0200
From:   "www.Advocati.org" <advocati@....com>
To:     linux-kernel@...r.kernel.org
Subject: Contributors can not just rescind the license (Legal Opinion)

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@....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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