My first thought was that someone was engaging in click-bait journalism. Even the title of the post — “Android GPLv2 termination worries – one more reason to upgrade to GPLv3” — is something I would expect from anti-Android trolls, not the Free Software Foundation.
The conclusion at the bottom of the article, that companies using Android should urge Linux developers to switch to the GPLv3, is so bad it’s not even wrong. It betrays a singular unawareness of the mobile market that Android serves.
Mobile phone manufacturers don’t make different silicon for each market — instead, they customize the software so that the phone can be type-approved by regulators and carriers in each country individually. Things like maximum transmitter output, radio channels, and how the device interacts with the cellular network all need to be customizable, and the device needs to be tamper-resistant.
A GPLv3 Android phone, with all the decryption keys available to any user on demand, is a non-starter. No manufacturer will make such an insecure-by-design device. No telco would put the stability of its network at such risk. No informed consumer would want one.
So what about those GPLv2 “permanent” terminations?
A New License Is Only a Download Away
“Take-it-or-leave-it” licenses like the GPL are a form of contract known variously as a “contract of adhesion,” “boilerplate contract” or “standard form contract.” As such, they are subject to special rules that require any ambiguities to always be resolved in favor of the recipient (contra proferentem). This “you made your bed, you sleep in it” approach is the same one we learned when we were kids — whoever cuts the birthday cake can’t complain about getting a smaller slice.
Contrary to the article’s claim of “permanent termination” for violating the GPLv2 license, it’s very easy to get a new license to resume distribution of a GPLv2 program. Just download or otherwise get a new copy, as per section 6 of the GPLv2, and you automatically receive a new license grant, which is valid for as long as you remain in compliance.
While this doesn’t “whitewash” any problems that arose under the old license grant, it’s clear that the new license cannot have additional restrictions, such as a past license termination, imposed on it. 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. (emphasis added) What does contra proferentum mean for entities that had a GPLv2 license instance terminated? Among other things, if they return to compliance, they have every right to rely on the automatic license grant provisions of section 6 of the GPL when they obtain a new copy of the program.
The word “permanently” never appears in the license, and any ambiguity as to whether the termination of a previous license under section 4 prohibits them from getting a new license must be resolved in their favor. Not that there’s much room for ambiguity — “Each time … receives a license” makes it clear that every copy comes with its own license instance.
Quick Summary for the TL;DR Set
While it is true that section 4 of the GPLv2 license terminates your right to redistribute when you fall out of compliance, section 6 is equally clear when it states that you get a valid license from the copyright-holder with each new copy you receive. Resuming distribution is simply a matter of returning to compliance and downloading a new copy.
It’s true that this won’t “fix” previous compliance problems; depending on their nature, they may have to be negotiated with the copyright-holders or decided by a court, but the threat of the ultimate “big stick” — of never being able to resume distribution with the new license automatically granted under section 6 — is an attempt to impose restrictions that neither a plain reading of the license nor the rules dealing with take-it-or-leave-it contracts allows.
My First Email
I went to the source to try to clarify both points — changing Linux to GPLv3 and terminations under GPLv2 licenses. I wrote the author, Brett Smith, on August 22:
In an article posted on the fsf website, you wrote the following:”Companies that sell products that use Android can help out by encouraging the developers of Linux to make the switch to GPLv3.”
Unlike most GPL-licensed software, linux is licensed as “GPL version 2,” not “GPL version 2, or at your option any later version.”
Linux simply cannot ever be switched to GPLv3 without a significant rewrite, because at least some of the people whose code is in linux are now dead, and others will refuse because they have no problem with GPLv2 license terms.
This has been pointed out time and again. Under copyright law — which is the basis of the GPL — Linus doesn’t have the ability or the right to take code written and owned by other people, that was licensed by them exclusively under the GPLv2, and change the license to “GPLv2 or later.”
It would almost be easier (and would certainly avoid the whole “derived works” problem) to switch to BSD. Fortunately, there is no need to consider that — the “problem” of forever losing the right to redistribute even after you are back in compliance simply doesn’t exist.
The only requirement for being allowed to redistribute under the GPLv2 is that you are currently in compliance with the license, and this is how everyone except the “usual suspects” have been treating it on a case-by-case level. There is simply nothing in the GPLv2 license to prevent someone who is currently in compliance from redistributing, and it is in nobody’s interest to imply otherwise.
Unfortunately, your article has already attracted the attention of people, and is generating FUD around Linux usage, as “proof” that Linux is unsafe for business.
Thank you for your attention to this matter.
Thank you for an excellent presentation of the issues and ‘reality’ of the GPL FUD situation.
While not an attorney, I spent many years studying, evaluating and writing software contracts. Reading the GPL licenses and following your arguments convinces me you are correct on all points.
Your remarks on the ‘unintended consequences’ of changing are equally on target.
Again, thanks for an interesting and informative series.