Public domain software is not open-source?

[Alexander Terekhov]

More on consideration (in exchange of a promise not to sue under
copyright law -- aka "license") in Larry Rosen's license contracts.
Let's look at the AFL:

http://www.opensource.org/licenses/afl-3.0.php

"Attribution Rights. You must retain, in the Source Code of any
Derivative Works that You create, all copyright, patent, or trademark
notices from the Source Code of the Original Work, as well as any
notices of licensing and any descriptive text identified therein as an
"Attribution Notice."

Now consider http://www.scu.edu/law/FacWebPage/Neustadter/e-books/abridged/main/cases/Allegheny.html
(cited in http://www.danwal.com/Consideration.pdf):

Summary: It was long ago said that "when a thing is to be done by the
plaintiff, be it never so small, this is a sufficient consideration to
ground an action."  (To sue Larry in contract.)

<quote>

Allegheny College v.  The National Chautauqua County Bank of Jamestown
                                                            246 N.Y.
369 (N.Y. Ct. of Appeals 1927)

Cardozo, J.

    The plaintiff, Allegheny College, is an institution of liberal
learning at Meadville, Pennsylvania. In June 1921, a "drive" was in
progress to secure for it an additional endowment of $1,250,000. An
appeal to contribute to this fund was made to Mary Yates Johnston of
Jamestown, New York. In response thereto, she signed and delivered on
June 15, 1921, the following writing:

"Estate Pledge,
"Allegheny College Second Century Endowment
"Jamestown, N. Y., June 15, 1921.

"In consideration of my interest in Christian Education, and in
consideration of others subscribing, I hereby subscribe and will pay
to the order of the Treasurer of Allegheny College, Meadville,
Pennsylvania, the sum of Five Thousand Dollars; $5,000.

"This obligation shall become due thirty days after my death, and I
hereby instruct my Executor, or Administrator, to pay the same out of
my estate. This pledge shall bear interest at the rate of . . . . per
cent per annum, payable annually, from . . . . till paid. The proceeds
of this obligation shall be added to the Endowment of said
Institution, or expended in accordance with instructions on reverse
side of this pledge.

"Name MARY YATES JOHNSTON,
"Address 306 East 6th Street,
"Jamestown, N. Y.
"Dayton E. McClain Witness
"T. R. Courtis Witness
"to authentic signature."

    On the reverse side of the writing is the following indorsement:

"In loving memory this gift shall be known as the Mary Yates Johnston
Memorial Fund, the proceeds from which shall be used to educate
students preparing for the Ministry, either in the United States or in
the Foreign Field.

"This pledge shall be valid only on the condition that the provisions
of my Will, now extant, shall be first met.

"MARY YATES JOHNSTON."

    The subscription was not payable by its terms until thirty days
after the death of the promisor. The sum of $1,000 was paid, however,
upon account in December, 1923, while the promisor was alive. The
college set the money aside to be held as a scholarship fund for the
benefit of students preparing for the ministry. Later, in July, 1924,
the promisor gave notice to the college that she repudiated the
promise. Upon the expiration of thirty days following her death, this
action was brought against the executor of her will to recover the
unpaid balance.

    The law of charitable subscriptions has been a prolific source of
controversy in this State and elsewhere. We have held that a promise
of that order is unenforcible like any other if made without
consideration.  On the other hand, though professing to apply to such
subscriptions the general law of contract, we have found consideration
present where the general law of contract, at least as then declared,
would have said that it was absent.

    A classic form of statement identifies consideration with
detriment to the promisee sustained by virtue of the promise. So
compendious a formula is little more than a half truth. There is need
of many a supplementary gloss before the outline can be so filled in
as to depict the classic doctrine. "The promise and the consideration
must purport to be the motive each for the other, in whole or at least
in part. It is not enough that the promise induces the detriment or
that the detriment induces the promise if the other half is wanting."
 If A promises B to make him a gift, consideration may be lacking,
though B has renounced other opportunities for betterment in the faith
that the promise will be kept.

    The half truths of one generation tend at times to perpetuate
themselves in the law as the whole truths of another, when constant
repetition brings it about that qualifications, taken once for
granted, are disregarded or forgotten. The doctrine of consideration
has not escaped the common lot. As far back as 1881, Judge Holmes in
his lectures on the Common Law, separated the detriment which is
merely a consequence of the promise from the detriment which is in
truth the motive or inducement, and yet added that the courts "have
gone far in obliterating this distinction." The tendency toward
effacement has not lessened with the years. On the contrary, there has
grown up of recent days a doctrine that a substitute for consideration
or an exception to its ordinary requirements can be found in what is
styled "a promissory estoppel."  Whether the exception has made its
way in this State to such an extent as to permit us to say that the
general law of consideration has been modified accordingly, we do not
now attempt to say. Cases such as Siegel v. Spear & Co. (234 N. Y.
479) and DeCicco v. Schweizer (221 N. Y. 431) may be signposts on the
road. Certain, at least, it is that we have adopted the doctrine of
promissory estoppel as the equivalent of consideration in connection
with our law of charitable subscriptions. So long as those decisions
stand, the question is not merely whether the enforcement of a
charitable subscription can be squared with the doctrine of
consideration in all its ancient rigor. The question may also be
whether it can be squared with the doctrine of consideration as
qualified by the doctrine of promissory estoppel.

    We have said that the cases in this State have recognized this
exception, if exception it is thought to be. Thus, in Barnes v. Perine
(12 N. Y. 18) the subscription was made without request, express or
implied, that the church do anything on the faith of it. Later, the
church did incur expense to the knowledge of the promisor, and in the
reasonable belief that the promise would be kept. We held the promise
binding, though consideration there was none except upon the theory of
a promissory estoppel. In Presbyterian Society v. Beach (74 N. Y. 72)
a situation substantially the same became the basis for a like ruling.
So in Roberts v. Cobb (103 N. Y. 600) and Keuka College v. Ray (167 N.
Y. 96) the moulds of consideration as fixed by the old doctrine were
subjected to a like expansion. Very likely, conceptions of public
policy have shaped, more or less subconsciously, the rulings thus
made. Judges have been affected by the thought that "defences of that
character" are "breaches of faith toward the public, and especially
toward those engaged in the same enterprise, and an unwarrantable
disappointment of the reasonable expectations of those interested."
The result speaks for itself irrespective of the motive. Decisions
which have stood so long, and which are supported by so many
considerations of public policy and reason, will not be overruled to
save the symmetry of a concept which itself came into our law, not so
much from any reasoned conviction of its justice, as from historical
accidents of practice and procedure. The concept survives as one of
the distinctive features of our legal system. We have no thought to
suggest that it is obsolete or on the way to be abandoned. As in the
case of other concepts, however, the pressure of exceptions has led to
irregularities of form.

    It is in this background of precedent that we are to view the
problem now before us. The background helps to an understanding of the
implications inherent in subscription and acceptance. This is so
though we may find in the end that without recourse to the innovation
of promissory estoppel the transaction can be fitted within the mould
of consideration as established by tradition.

    The promisor wished to have a memorial to perpetuate her name. She
imposed a condition that the "gift" should "be known as the Mary Yates
Johnston Memorial Fund." The moment that the college accepted $1,000
as a payment on account, there was an assumption of a duty to do
whatever acts were customary or reasonably necessary to maintain the
memorial fairly and justly in the spirit of its creation. The college
could not accept the money, and hold itself free thereafter from
personal responsibility to give effect to the condition.   More is
involved in the receipt of such a fund than a mere acceptance of money
to be held to a corporate use. The purpose of the founder would be
unfairly thwarted or at least inadequately served if the college
failed to communicate to the world, or in any event to applicants for
the scholarship, the title of the memorial. By implication it
undertook, when it accepted a portion of the "gift," that in its
circulars of information and in other customary ways, when making
announcement of this scholarship, it would couple with the
announcement the name of the donor. The donor was not at liberty to
gain the benefit of such an undertaking upon the payment of a part and
disappoint the expectation that there would be payment of the residue.
If the college had stated after receiving $1,000 upon account of the
subscription that it would apply the money to the prescribed use, but
that in its circulars of information and when responding to
prospective applicants it would deal with the fund as an anonymous
donation, there is little doubt that the subscriber would have been at
liberty to treat this statement as the repudiation of a duty impliedly
assumed, a repudiation justifying a refusal to make payments in the
future. Obligation in such circumstances is correlative and mutual. A
case much in point is N. J. Hospital v. Wright (95 N. J. L. 462, 464),
where a subscription for the maintenance of a bed in a hospital was
held to be enforcible by virtue of an implied promise by the hospital
that the bed should be maintained in the name of the subscriber.  A
parallel situation might arise upon the endowment of a chair or a
fellowship in a university by the aid of annual payments with the
condition that it should commemorate the name of the founder or that
of a member of his family. The university would fail to live up to the
fair meaning of its promise if it were to publish in its circulars of
information and elsewhere the existence of a chair or a fellowship in
the prescribed subject, and omit the benefactor's name. A duty to act
in ways beneficial to the promisor and beyond the application of the
fund to the mere uses of the trust would be cast upon the promisee by
the acceptance of the money. We do not need to measure the extent
either of benefit to the promisor or of detriment to the promisee
implicit in this duty. "If a person chooses to make an extravagant
promise for an inadequate consideration it is his own affair."   It
was long ago said that "when a thing is to be done by the plaintiff,
be it never so small, this is a sufficient consideration to ground an
action."  The longing for posthumous remembrance is an emotion not so
weak as to justify us in saying that its gratification is a negligible
good.

    We think the duty assumed by the plaintiff to perpetuate the name
of the founder of the memorial is sufficient in itself to give
validity to the subscription within the rules that define
consideration for a promise of that order. When the promisee subjected
itself to such a duty at the implied request of the promisor, the
result was the creation of a bilateral agreement. There was a promise
on the one side and on the other a return promise, made, it is true,
by implication, but expressing an obligation that had been exacted as
a condition of the payment. A bilateral agreement may exist though one
of the mutual promises be a promise "implied in fact," an inference
from conduct as opposed to an inference from words. We think the fair
inference to be drawn from the acceptance of a payment on account of
the subscription is a promise by the college to do what may be
necessary on its part to make the scholarship effective. The plan
conceived by the subscriber will be mutilated and distorted unless the
sum to be accepted is adequate to the end in view. Moreover, the time
to affix her name to the memorial will not arrive until the entire
fund has been collected. The college may thus thwart the purpose of
the payment on account if at liberty to reject a tender of  the
residue. It is no answer to say that a duty would then arise to make
restitution of the money. If such a duty may be imposed, the only
reason for its existence must be that there is then a failure of
"consideration." To say that there is a failure of consideration is to
concede that a consideration has been promised since otherwise it
could not fail. No doubt there are times and situations in which
limitations laid upon a promisee in connection with the use of what is
paid by a subscriber lack the quality of a consideration, and are to
be classed merely as conditions. "It is often difficult to determine
whether words of condition in a promise indicate a request for
consideration or state a mere condition in a gratuitous promise. An
aid, though not a conclusive test in determining which construction of
the promise is more reasonable is an inquiry whether the happening of
the condition will be a benefit to the promisor. If so, it is a fair
inference that the happening was requested as a consideration."  Such
must be the meaning of this transaction unless we are prepared to hold
that the college may keep the payment on account, and thereafter
nullify the scholarship which is to preserve the memory of the
subscriber. The fair implication to be gathered from the whole
transaction is assent to the condition and the assumption of a duty to
go forward with performance.  The subscriber does not say: I hand you
$1,000, and you may make up your mind later, after my death, whether
you will undertake to commemorate my name. What she says in effect is
this: I hand you $1,000, and if you are unwilling to commemorate me,
the time to speak is now.

    The conclusion thus reached makes it needless to consider whether,
aside from the feature of a memorial, a promissory estoppel may result
from the assumption of a duty to apply the fund, so far as already
paid, to special purposes not mandatory under the provisions of the
college charter (the support and education of students preparing for
the ministry), an assumption induced by the belief that other payments
sufficient in amount to make the scholarship effective would be added
to the fund thereafter upon the death of the subscriber.

    The judgment of the Appellate Division and that of the Trial Term
should be reversed, and judgment ordered for the plaintiff as prayed
for in the complaint, with costs in all courts.

</quote>

On Fri, Mar 7, 2008 at 3:44 PM, Alexander Terekhov
<alexander.terekhov at gmail.com> wrote:
> On Fri, Mar 7, 2008 at 1:40 AM, Ben Tilly <btilly at gmail.com> wrote:
> > On Thu, Mar 6, 2008 at 3:50 PM, Alexander Terekhov
> > <alexander.terekhov at gmail.com> wrote:
> > >  To repeat, Mr. Rosen is on record:
> > >
> > >  "Most open source licenses you'll find at www.opensource.org and all proprietary
> > >  software licenses you'll find anywhere are to be interpreted under
> > >  contract law. They can be
> > >  enforced, like other contracts are enforced, against both a licensor
> > >  and a licensee.
> > >
> > >  Contracts can almost always be enforced against a licensor. If a
> > >  licensor promises you
> > >  the source code, or promises not to interfere with your lawful uses of
> > >  the software, he is bound
> > >  by those promises as long as you reasonably relied on those promises
> > >  when you accepted the
> > >  contract. The general rule is that the author of a contract is bound
> > >  by his own words."
> >
> > Which is all true but leaves out the huge point that the first rule of
> > contract law is that it only applies when there is an actual contract.
> >  And establishing a contract between two parties means that very
> > specific conditions have to be met.  (For example consideration must
> > exist.)  With many ways that open source software is actually
> > distributed, these terms are not satisfied and no contract exists.
>
> Scenario: Larry Rosen transacts some object code to, say, Alan Cox.
> Larry Rosen claims that it is copyrighted by him (well since he is on
> record sorta trying to copyright Shakespeare you can't be really sure
> but okay) and licensed under the OSL. Larry Rosen neglects to obtain
> express assent (like asking Alan to click on "I accept" button) and
> doesn't ask any money in that transaction.
>
> A few days latter Alan Cox decides to make use of the OSL license. He
> accepts the license by performing an act reserved to copyright owner
> (Larry Rosen) like making a bunch of copies and even gives some to his
> girlfriend. A few days later Alan wants to tinker with Larry's code.
> Alan videoconfs Larry and asks him for the source code
> (http://www.abiword.org/~abi/expo99/expo_02_010_full.jpg). Larry tells
> Alan "forget it" (makes it clear that he doesn't want to give Alan the
> source code).
>
> Alan sues Larry and claims that Larry doesn't act as promised in the
> OSL. (A promise to provide Alan "a machine-readable copy of the Source
> Code of the Original Work along with each copy of the Original Work
> that Licensor [Larry] distributes" or doesn't "satisfy this obligation
> by placing a machine-readable copy of the Source Code in an
> information repository reasonably calculated to permit inexpensive and
> convenient access by You [Alan] for as long as Licensor [Larry]
> continues to distribute the Original Work".)
>
> Larry counter claims that because Alan didn't click on "I accept" and
> didn't pay a cent, the court should dismiss the suit with prejudice.
>
> Alan points out that he has in fact accepted the OSL by performing an
> act reserved to copyright owner Larry, that he (Alan) is now obliged
> to provide source code to his girlfriend (see above), and that the OSL
> is full of consideration supporting the contract. He cites to
> http://www.danwal.com/consideration.html "In addition, under contract
> law, a contract is supported by consideration even if the
> consideration flows solely to a third party. See Mencher v. Weiss, 114
> N.E.2d at 181("[I]t is fundamental that a benefit flowing to a third
> person or legal entity constitutes a sufficient consideration for the
> promise of another."); RESTATEMENT (SECOND) OF CONTRACTS § 71, cmt. e
> (1981)." In re Asia Global Crossing, Ltd., 326 B.R. 240 (Bankr.
> S.D.N.Y. 2005) http://www.danwal.com/Consideration.pdf.
>
> What do you thik the judge will rule?

regards,
alexander.

--
"12/21/2007 ORDER TO EXTEND TIME FOR DEFENDANT...
 01/22/2008 ORDER TO EXTEND TIME FOR DEFENDANT...
 02/19/2008 ORDER TO EXTEND TIME FOR DEFENDAT(sic)...
 02/26/2008 ENDORSED LETTER addressed to Judge Laura Taylor Swain from
Daniel B. Ravicher...
 02/27/2008 ORDER that Defendants Verizon Communications, Inc. has
until March 14, 2008..."

 -- 1:07-cv-11070-LTS aka Never Beginning "GPL Enforcement" case