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AR | 5 Jun 2008 18:48

Dual-Licensing Situation

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?

Here is what I think is happening (it took me a while to put my finger 
on it):

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 (e.g., loss of rights) 
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 my right to buy a 
proprietary license for my code.

4. Therefore, the GPLv2 has been violated.

Make sense?
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Arnoud Engelfriet | 5 Jun 2008 20:13
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Re: Dual-Licensing Situation

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

> 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.

> 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.

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.
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AR | 5 Jun 2008 22:08

Re: Dual-Licensing Situation

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
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AR | 5 Jun 2008 23:38

Re: Dual-Licensing Situation

Thomas Charron wrote:
> On Thu, Jun 5, 2008 at 4:08 PM, AR <aricvim <at> suddenlink.net> wrote:
>   
>> Arnoud Engelfriet wrote:
>>     
>>> AR wrote:
>>> 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:
>>     
>
>   No, you don't lose a right.  You don't have a right to *buy* anything, ever.
>   

You obviously did not even read my argument below, so I really shouldn't 
bother restating it.  But . . . I am not necessarily talking about 
buying anything.  I am losing the right to accept the GPLv2 without 
giving up something the license does not require me to give up.

>   
>> 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.
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Thomas Charron | 5 Jun 2008 22:47
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Re: Dual-Licensing Situation

On Thu, Jun 5, 2008 at 4:08 PM, AR <aricvim <at> suddenlink.net> wrote:
> Arnoud Engelfriet wrote:
>> AR wrote:
>> 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:

  No, you don't lose a right.  You don't have a right to *buy* anything, ever.

> 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.

  Is it included IN the gplv2 they would grant you?

> 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.

  Your trying to extend the freedom that the GPL seeks to grant you to
also include the ability for you to choose to close something else?
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Federico Di Gregorio | 5 Jun 2008 22:37
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Re: Dual-Licensing Situation

Il giorno gio, 05/06/2008 alle 16.08 -0400, AR ha scritto:
> 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:

IHMO you don't lose any rights. This is like saying "I sell motorcycles
and I'll sell them to anybody except people that already own a car". I
am just stating how I'll behave as a vendor but I don't reduce in any
way your right to own a car. Yes, they are trying some mental trick on
you to force you to get a proprietary license right now, but they are
not limiting your rights in any way.

--

-- 
Federico Di Gregorio                         http://people.initd.org/fog
Debian GNU/Linux Developer                                fog <at> debian.org
INIT.D Developer                                           fog <at> initd.org
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Jesse McGrew | 6 Jun 2008 03:37
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Re: Dual-Licensing Situation

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.
>
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Arnoud Engelfriet | 6 Jun 2008 09:04
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Re: Dual-Licensing Situation

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
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AR | 6 Jun 2008 15:51

Re: Dual-Licensing Situation

Federico Di Gregorio wrote:
> Il giorno gio, 05/06/2008 alle 16.08 -0400, AR ha scritto:
>   
>> 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:
>>     
>
> IHMO you don't lose any rights. This is like saying "I sell motorcycles
> and I'll sell them to anybody except people that already own a car". I
> am just stating how I'll behave as a vendor but I don't reduce in any
> way your right to own a car. Yes, they are trying some mental trick on
> you to force you to get a proprietary license right now, but they are
> not limiting your rights in any way
(Continue reading)

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ard | 6 Jun 2008 16:07
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Re: Dual-Licensing Situation

On Fri, Jun 06, 2008 at 09:51:35AM -0400, AR wrote:
> Scenario 2:
> I am the copyright holder of my code.
> I developed it using the GPL license of the dual-licensed code.
> I release it under the GPL.
> A company approaches me that wants me to dual-license it for
> $5000 to include in their non-free code.
> My code is worth $5000, but I can no longer get the $1000 license AS A
> SOLE RESULT OF ACCEPTING THE GPL.
> I have lost my right to dual-license my code AS A
> SOLE RESULT OF ACCEPTING THE GPL that I would have had otherwise.
> I no longer improve and GPL-release my code because I can't afford it.

So what stops you from getting the proprietary licensed code, and
distribute your copyrighted code with the proprietary licensed
code?

> "By accepting this GPL license, you waive the ability to acquire the  
> propietary license."

Which I think is normal, you need to get a fresh proprietary
distribution from the source. You cannot just downgrade a GPL
distribution to a proprietary one.

If they meant it differently, then all it takes is a cd or
whatever with the GPL content, and nobody will be allowed to
acquire the proprietary license anymore.
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