Fixing our Self Defeating Licence Compatibility Problems in Open Source
The first thing to note is that Open Source incompatible licence combination isn’t as easy as simply combining the code under a single licence: You have to preserve the essential elements of both licences in the code which is combined (although not necessarily the whole project), so for an Apache-2/GPLv2 combination, you’ll need a note on the files saying they follow the stronger Apache patent termination and indemnity even if they’re otherwise GPLv2. However, as long as you’re careful the combination works for either of two reasons: because the Apache-2 restrictions aren’t material additional restrictions under the GPLv2 preamble or because no-one was actually harmed in the making of the combination (or both).
One can see from the above that similar arguments can be applied to various other supposedly incompatible licence combinations (exercise for the reader: try it with BSD-4-Clause and GPLv2). One final point that should be made is that licences and contracts are also all about what was in the minds of the parties, so for open source licences on community code, the norms and practices of the community matter in addition to what the licence actually says and what courts have made of it. In the final analysis, if the community norm of, say, a GPLv2 project is to accept Apache-2 code allowing for the stronger patent and indemnity clauses, then that will become the understood basis for interpreting the GPLv2 licence in that community.