On 1/20/07, Darrin Chandler <dwchandler@stilyagin.com> wrote:

On Sat, Jan 20, 2007 at 05:28:09PM -0700, Joshua Zeidner wrote:
>   Recently I have run into yet another company who is 'dual licensing' a
> GPL based code base.  In my estimation, none of the principles that these
> companies base their business on is sound.  In essence, they are somehow
> reserving special rights to a GPL project, and selling those rights as a
> product( typically packaged with support services ).  In many cases, I am
> obliged to publish any additions I make to the code base( as is proper to
> the GPL ), but under some unstipulated clause they are allowed to sell
> rights not only to the code base, but to the additions that I have committed
> back to the 'community'.  Something doesn't make sense here, and the real
> basis of the problem is there is no legal precedence in this area at all.
> It almost feels like a scam that is harnessing the public energy and input
> towards personal( or corporate ) profit.  Once the code is GPL it is public
> and no person or entity reserves the right to license the code in any way(
> at least that is my understanding ).
>
>   Has anyone used a dual license scheme successfully?  or dealt with a
> company such as the one I describe above?  Did you buy the 'commercial
> license' version of a GPL project?  Were you happy with the product?

<insert usual IANAL disclaimer/>

Hi Darrin,

GPL is based on copyright. The copyright holder has ALL the rights, and
may assign them however they wish. If they choose to offer it as GPL,
then of course they are bound by that (being their own agreement by
their own choice), but that *doesn't* mean they can't also license it
other ways.

   Exactly. The GPL is an agreement with the public, and once it is made it is not the right of the originator to change that. This is a situation that has come up repeatedly in the past few years. Recently I have been dealing with a project called JasperReports which is a Java based report engine similar to Crystal Reports.

    1) At some point in history the original designer released the code under the GPL.
    2) Then reports indicate that he ceded his copyrights to the company Japser Reports, Inc.( or somesuch name ).
    3) Now JasperReports has not technically changed the license, but they feel that they can *grant the right to invalidate GPL terms*. This right is bought as part of a service package.

In my estimation the problem began at step 2. The author doesn't have any rights over the code if he released it as GPL at step 1. It wasn't his to sell or to alter in any way, it was granted to the public. The company _does not have the right to change the terms of the GPL_ regardless of the codes origin or their investment in its development.

So, you get a copy under GPL because they must provide it. Now you are
bound *only* by the GPL.

So, you agree to their OTHER license in order to get support,
proprietary extensions, or whatever. They, as the copyright holder have
every right to do that.

I just want to clarify, what copy rights to they retain on a GPL licensed code?

They can even offer you that OTHER license in
place of the GPL (people license their copyrighted works under different
terms to different people all the time, and always have).

But the key difference here is that the GPL is an agreement with the public and describes specific terms, changing those terms, even if you are the originator of the code is a violation of the GPL.

So, it MAY be
that if you have agreed to the OTHER license that you are NOT under GPL
at all.

Again we have the assumption that the originator is still holding something after he has released the code as GPL. It is my understanding that the originator has no more rights over the code base as anyone else.

Not knowing anything (even the names) of the product, company, or
licensing terms... who knows? It all depends on that other license.
But... are you being used? Probably not in any way that is against the
law. Do you *feel* used? Probably, and probably justifiably so.

Although there is the issue that they may be exploiting me, there is the greater issue that they are exploiting the public at large by violating an agreement that was made with them.

A
company led you down a rosy path uttering magic "open source" words
when, if fact, they were lying rats. Surprise! We're only playing at
open source for PR and to get people to code for free!

I've run into that one enough times to make sure I've got points covered. This issue that I am dealing with right now is, do I even have to consider dealing with the commercial entity at all? What rights do they have over the code?

One MAJOR issue that still remains in the OSS world is that the US, and most other nations have not really expressed their stance on the GPL or other major OSS licenses. There is really no reason for anyone to believe that the US government will support the GPL as a valid contract at all. Now, there are millions if not billions in the OSS world, these issues are bound to find their way to court in coming years. If anyone knows who are the lawyers representing companies like Jasper Reports and SugarCRM please let me know who they are. I hate to bring a random name into this, but I believe a man named David Radcliffe is supporting some of these progressions in 'Commercial OSS'. If anyone knows of a good lawyer who can help my client sort these things out, please contact me.

I hope this works out well for you in the end, or at least that you
found out the deal before you spent a lot of time and effort.

Thanks Darrin, you've been really helpful. I hope to help out other PLUG people avoid these pitfalls if I can.

-jmz