encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

Rick Moen rick at linuxmafia.com
Mon Feb 11 17:53:24 UTC 2008

Quoting David A. Temeles, Jr. (dtemeles at nvalaw.com):

> License-discuss may not be the appropriate forum for the discussion
> Alexander is raising, but this topic is of significant interest and import
> to the open source community and should be discussed vigorously by the
> members of the open source community.  I would think that the members of
> this list would have more intellectual curiosity in the enforceability of
> open source licenses than demonstrated over the past few days in the
> responses to Alexander's posts.  

The standard rejoinder is that, if a licence were, in some
Terenkov/Wallace fever-dream scenario, ruled to have no force,
recipients would end up with only the rights statutorily granted to a
lawful recipient of any copyright-encumbered work, which is dramatically
_fewer_ than any open-source licence conveys, and omits the rights of
redistribution, creation of derivative works, etc.  (Plaintiff would
thus have succeeded primarily in shooting himself/herself and other
recipients in the foot.)  Recipients would then need to seek from the
copyright owners some revised licence attached to a reissue of the work.  

In short, the standard rejoinder is "If so, so what?"  (Sort of the
rhetorical equivalent of filing a demurrer in court.  ;->  )

Since you're an attorney and this is your field, you might be able to
identify something that the standard rejoinder overlooks.  That would be

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