[RFC] Serious Open Source (SOS) License -- Injunctive Relief clause
wtfpl.user at googlemail.com
Mon Mar 16 23:38:46 UTC 2009
Once again no substance regarding the question asked.
CC'd license-discuss at opensource.org.
license-discucss at opensource.org folks, please see:
2009/3/17 Rick Moen <rick at linuxmafia.com>:
> Quoting wtfpl user (wtfpl.user at googlemail.com):
>> We are one, but we are many. :-)
> You are (mild) damage. The Internet is likely to route around you.
>> Seriously, other than mild insults, do you have any substance to
>> contribute regarding the question asked:
>> What do you folks think about a reciprocal open source license with a
>> pretty standard contractual injunctive relief clause?
> I think you have creately misunderstood the mission of
> license-review at opensource.org. Among other problems.
To repeat: the idea is to create a license in which licensee's
distributees are intended Third Party Beneficiaries with contractual
right to have access to source code provided by licensee so that a
breach or threatened breach/attempt to deny that contractual right can
be easily stopped by injunction/specific performance.
Bruce Perens seems to doubt validity of "the part about the licensee
"The marketing agreement expressly authorizes injunctive relief for a
breach or threatened breach of the confidentiality provision. The
agreement also sets forth an acknowledgment by Express "that the
damages to be suffered by CIN as a result of such a breach would be
immediate and irreparable and would necessitate such injunctive
relief." This concession obviates the need to delve into the merits
of the parties' dispute beyond what is required to determine whether
there is a threatened breach of the confidentiality provision. ... In
light of this evidence, the district court did not abuse its
discretion in determining that Express, at a minimum, threatened to
breach the confidentiality provision, justifying injunctive relief.
Express raises other arguments concerning the scope of the
injunction. We find these arguments unnecessary to address or without
merit and affirm the district court’s ruling in its entirety.
A. CONTRACT FOR CONSENT TO INJUNCTIVE RELIEF
An injunction may be more easily obtained if the party against whom
the injunction is sought has consented to the injunctive relief,
typically by way of a settlement or other agreement. The Virginia
Supreme Court has approved issuance of injunctions where authorized by
If parties, for valuable consideration, with their eyes open, contract
that a particular thing shall not be done, all that a court of equity
has to do is to say by way of injunction that which the parties have
already said by way of covenant -- that the thing shall not be done;
and in such case the injunction does nothing more than give the
sanction of the process of the court to that which already is the
contract between the parties. It is not, then, a question of
convenience or inconvenience, or of the amount of damage or injury. It
is the specific performance, by the court, of that negative bargain
which the parties have made, with their eyes open, between
Here's another one:
"But the rights of parties are not governed by comparing the pecuniary
loss to one party and the benefit to another, where, as here, the
rights of the parties are founded in contract and are sufficiently
explicit. 28 Amer. Juris. Injuctions, Sec. 55. If the rights and
duties of the parties are fixed by contract, it is not the question of
convenience or inconvenience, or the comparative amount of damage or
injury resulting from the enforcement of the right. It is the specific
performance by the court of that bargain which the parties have made,
with their eyes open. Lindsay v. James, 188 Va. 646, 51 S.E.2d 326,
333, 7 A.L.R.2d 597. This is especially true, we think, when the
contract the parties have made, and which is sought to be enforced, is
affected with a public interest. We think the rights and duties of the
parties are clear and unmistakable. The action of the unit is
responsive to the judgment of the operating committee. The unit has no
adequate remedy at law, and it is therefore entitled to invoke
equitable processes in the enforcement of its rights, duties and
obligations conferred upon it by the plan of unitization.
The judgment of the court is reversed with directions to grant the
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