Dual-Licensing Situation

[Jesse McGrew]

On Thu, Jun 5, 2008 at 1:08 PM, AR <aricvim at suddenlink.net> wrote:
> 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.

Your point #1 is still flawed. The GPL doesn't explicitly give you the
right to run the code; you have that right already, simply by
possessing a copy of it. The part you quoted merely clarifies that the
GPL places restrictions on distribution, not use. Since they haven't
promised you that you'll be able to run the code, much less that
you'll be able to run it with "no consequences", they aren't violating
anything by refusing to give you a proprietary license later.

Furthermore, even if they *did* make that promise, you'd have a hard
time arguing that they were obligated to grant you a proprietary
license anyway: you'd still be free to keep running the GPL version,
so your ability to run the program still wouldn't be restricted.

Jesse