> I believe individual developers who have contributed to the Linux kernel should have the right to enforce the license, if needed.
> On the other hand, such activities must always be oriented to compliance, and compliance only. Collecting huge amounts of contractual penalties is questionable.
To wit, isn't this a dichotomy? Either you make compliance mandatory, or optional. Can you have both of the above? How can you enforce without a threat of penalty?
Instead of invoking par. 4 as the termination clause, McHardy tried to unilaterally revoke the licence which is not allowed by GPLv2.
A lot of recent (last 10 years) in FOSS legal discussion seems to have concluded that personal copyright is the best practice. Every developer with substantially contribution can defend the project in their local legal system. This case seems to imply that we should abandon this practice and return to copyright assignment so that a single legal entity can claim in court to be the legal owner of the complete work.
I believe the real issue may be more of the delianation between different “works”. I. e. is the Linux kernel a singular work, allowing anyone who contributed significantly to claim copyright protection on the whole, or does the plaintiff in this case only have a claim to the specific module they contributed to.
In any case, this was only about the injunction, and the plaintiff’s case probably suffered most from being overly broad. It appears that the missing distinction between versions the plaintiff may or may not have contributed to was also relevant to making a withdrawal the better option, tactically.
As to that motivation, it may be interesting to note that court fees and costs for lawyers differ significantly if a judge ends the procedure with a written ruling vs voluntary withdrawal. I’ve personally seen judges advising the parties of the likely outcome if they were asked to rule, and strongly encouraging one side to think about withdrawing their motions.
It seems entirely reasonable to me. A pure reviewer (as opposed to a code contributor) has no copyright claim to the work because the reviewer didn't write it. The court wants to see evidence that the plaintiff does indeed have a copyright claim over the works he claimed he does.
> This case seems to imply that we should abandon this practice...
I don't think so. It simply demonstrates that one cannot bring a claim for copyleft license violation without actually having a copyright interest in the work, which is something we already knew.
I think despite some drawbacks, the "everyone has their own" model is still better but needs some fixes. Probably in form of binding Contributor Guidelines.
In short: The license only governs the rights you give others relating to what you own. You cannot give (or revoke) a license for things you do not own.
Edit: I mean even there is minimal contribution left from Linus in kernel, if he was the plaintiff here, would result be different?
He still cannot claim copyright ownership of the whole though, since he did not create everything in the kernel. Commits from other authors still have their own copyright.
It's Free Software. As long as you adhere to the GPL2, you don't need to take Linus' will in consideration. It's nice if you do, but he can't take back the licence. If he could, it wouldn't be Free Software.
Companies are explicitly trying to make software with different licenses for stuff they actually sell/give to consumers. I would not be surprised if in 10 years, the only major software with GPL used by large companies is all on servers where they are basically no compliance issues.
What is appalling is that the same people that missed the "opportunity" claim that he should have donated the money to a good cause/community/Linux foundation etc.
Of course he did it for the money! To think that he did it for the "good of the community", whatever that is, is simply naive. He saw an opportunity and if there was compliance as a side-product even better.
How about not considering yourself morally superior because he was in for the money and you were not invited to the party?
I like this idea a lot.
McHardy's action is (quite) less commendable than one which would have resulted in him not benefiting directly from the legal loopholes. He is to take the backlash but probably assumed it.
However I don't think the non-action of the rest of people stems from the "moral superiority" but from the lack of inclination or time to assume the fight for GPL compliance without monetary gains.