Dual-Licensing Situation

[Arnoud Engelfriet]

AR wrote:
> 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.  

No, it doesn't. It says that *you* may not impose additional restrictions
upon other people. But what the licensor can do, is entirely up to him.

The GPL is not a law that everyone has to abide by. It's a license from
the copyright holder to users and distributors of the software. So
it's not the GPL that grants things, it's the author who does so.

> 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.

The GPLv2 requires no such thing. The "additional restriction" item
only says that distributors cannot *add* restrictions. For example
you cannot say to downstream recipients that they cannot use it
in a commercial setting. 

What these authors are doing is more like an advance condition. Just
like you are entitled to say "I will give you the GPLv2 software but
only if you give me $1000". That's perfectly legal. People without
$1000 to spare won't be able to obtain the GPLv2 software from you,
but since they have no *right* to obtain any software, there is
nothing wrong with that.

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

Well, there are no restrictions imposed upon your usage of the GPLv2
software. They also don't impose conditions on your usage or distribution
of the software. So what's the problem?

They only say "once you start using the GPL software, we won't sell
a proprietary license anymore". But since acquiring a proprietary
license is not a right, forfetting this license is not a restriction.

You are not restricted if you are denied something to which you
have no right in the first place.

> 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.  

This is correct: it's an option you have to forego *before* you can
accept the GPLv2. It's not a *condition added _to_ the GPLv2*. Once
you accept the GPLv2, you can do whatever the GPLv2 permits you to.
You are not restricted in any way in the exercise of the rights
granted to you by the GPLv2.

> The GPLv2 does not allow the addition of conditions.

Actually it only does not allow additional restrictions on the
rights granted to you under GPLv2. The ability to acquire a different
license is not in GPLv2, therefore a refusal by the copyright holder
to actually give you a proprietary license is not an additional
restriction.

> >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 

"7. If ... conditions are imposed on you ... that contradict the conditions
of this License, they do not excuse you from the conditions of this License. 
If you cannot distribute so as to satisfy simultaneously your obligations
under this License and any other pertinent obligations, then as a
consequence you may not distribute the Program at all.  "

Under your theory a condition is imposed on you that contradicts
the conditions of GPLv2. Therefore you cannot distribute the GPLv2
software to anyone else.

> 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.

This is where you first delete the GPLv2 software I guess. And
I don't think it's legal to do an audit for unrelated software.

Arnoud

-- 
IT lawyer, blogger and patent attorney ~ Partner at ICTRecht.nl legal services
   http://www.arnoud.engelfriet.net/ ~ http://www.iusmentis.com/