Dual-Licensing Situation

[AR]

Arnoud Engelfriet wrote:
> AR wrote:
>   
>> I'm looking at a situation where someone has released some code under 
>> both GPLv2 and a proprietary license.  I'm being told this:  If you 
>> develop (and do not distribute) code using our GPL code, you cannot then 
>> get a proprietary license for your code.  That is, if I merely *use* 
>> their GPL code, I forfeit the right to buy a proprietary license.  Isn't 
>> that a further restriction placed upon my code by them, and therefore a 
>> violation of the GPL?
>>     
>
> I don't see how. You don't lose any rights granted to you by
> the GPL.

Thanks for your reply.  Yes I do lose rights, so let me try a different 
viewpoint:

The GPL grants me the right to run the program without restriction among 
other things.  It grants me the right to accept the license without 
additional conditions.  There are lots of ways to say what is going on, 
but this is the gist of this licensor's offer:  "You can buy a 
proprietary license or you can use the GPLv2 license.  If you use the 
GPLv2 license, you must give up your ability to obtain a proprietary 
license."  So I cannot accept the GPLv2 by itself.  I must consider it 
with the proprietary license looming behind it.  The GPLv2 requires that 
it stand alone.

In fact, as I think about it, even though the proprietary license and 
the GPLv2 license are offered as two separate licenses, the vendor is 
basically attaching his proprietary license to the GPL license to make 
one by referring to it:  I can only accept the proprietary license if I 
have not already accepted the GPLv2 license.   You must consider what 
you lose before you accept the GPLv2--that is not the freedom the GPLv2 
seeks to guarantee.

> More importantly, the copyright holder cannot violate a
> license he grants to you.
>   

Correct, and he has granted me the right to run the program without 
restriction and the right to accept the license without additional 
conditions.

>> 3. The consequences of running the GPLv2 release of the dual-licensed 
>> code mentioned above with my code is that I lose my right to buy a 
>> proprietary license for my code.
>>     
>
> You don't have a right to buy anything from anyone. In any commercial
> transactions both parties have to *agree* to complete the transaction.
> A party cannot demand that the other party sells something.
>   

OK, my choice of wording could have been better.  My argument still 
stands with this rewording of 2 and 3:

1. The GPLv2 explicitly gives me the right to compile and run and 
otherwise monkey around with the licensed code with no consequences in 
doing so unless there is distribution: "Activities other than copying, 
distribution and modification are not covered by this License; they are 
outside its scope. The act of running the Program is not restricted. . . ."

2. If the act of running the Program (or a derivative of it) is not 
restricted, then there can be no consequences (i.e., loss of anything) 
from running the program.

3. The consequences of running the GPLv2 release of the dual-licensed 
code mentioned above with my code is that I lose the eligibility to buy 
a proprietary license for my code.

Essentially, the vendor is adding a condition to the GPLv2:  I must give 
up the option of a proprietary license in order to accept the GPLv2.  
The GPLv2 does not allow the addition of conditions.

>> 4. Therefore, the GPLv2 has been violated.
>>     
>
> Even if your theory is correct, the only consequence is that you
> can't use the GPLv2 version (it self-destructs upon breach) and
> the company won't sell you the proprietary version. That seems
> kind of painful for you.
>   

The GPLv2 does not self-destruct when the grantor breaches.  What you're 
saying is that if I use a GPLv2 program for 10 years, the grantor of the 
license can breach the GPLv2 just to revoke my license.  Sorry, it 
doesn't work that way.  You lose your rights as *recipient* of the 
license if *you* breach it.  The recipient does not lose the rights if 
the *grantor* breaches.

> I do wonder how they company is going to prove that I did use their
> GPLv2-licensed code on my computer if no acts of distribution occur.
>   

If they grant you a proprietary license, they have audit rights.  If 
they find what they consider to be a breach, they can do Bad Things to you.