[RFC] Serious Open Source (SOS) License -- Injunctive Relief clause

[Donovan Hawkins]

On Tue, 17 Mar 2009, wtfpl user wrote:

> Once again no substance regarding the question asked.
>
> CC'd license-discuss at opensource.org.

Dropped license-review as the discussion remains off-topic for that list 
(license-review was created specifically to keep the discussion of license 
topics apart from the actual review of pending licenses).


> 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
> consenting..."

IANAL, but I think he means that you cannot consent to an injunction 
before the fact. Or rather, that the judge will not enter a consent decree 
if the party is standing before him clearly not consenting. You will still 
have to go before the judge and fight it out, so the question is really 
whether you can put something in the license to ensure you win that fight. 
It's not exactly the same thing.


> Well, consider:
>
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=app\20030430\02-0836&invol=1

"The fighting issue is whether CIN's petition for injunctive relief falls 
within the scope of the arbitration provision"

AFAICT, injunctive relief was always an option in this case. The question 
was whether specifying injunctive relief as an option during arbitration 
meant that arbitration was required in order to obtain an injuction.


> Here's more:
>
> http://www.cwm-law.com/articles/pdf/pdf_Schultz-Snow%20Article2.pdf

This quotes Sonoma Development, Inc. v. Miller (1999) which then quotes 
Spilling v. Hutcheson (1910). Both cases involve a written covenant 
restricting the use of a piece of land being enforced against future 
buyers. The Sonoma ruling says nothing about the clause you 
want (http://www.precydent.com/OriginalVersion/1982098.pdf?id=245566); 
quite the opposite, it says that agreeing not to do something is 
sufficient by itself to justify an injunction to enforce the prior 
agreement.


Your cases seem to establish that forbidding something is sufficient to 
grant injunctive relief *assuming injunctive relief was an allowed 
remedy*. No clause specifying injunctive relief is necessary. The issues 
that have faced open source licenses on this front, however, are:

1) Is injunctive relief allowed at all, or are damages the only 
appropriate relief.

2) Do license restrictions absolutely forbid certain actions (such as 
forbidding distribution without the required legal notices), or do they 
merely grant rights which come with certain requirements on how those 
rights are to be executed.

Your clause might clarify what is forbidden, though there are more direct 
ways of doing that (and they probably would not have helped in Jacobsen v. 
Katzer regardless). A more interesting question is whether such a clause 
could ensure injunctive relief remains an option even when it would not 
otherwise be one, but your case law doesn't seem to cover that.


Fortunately the Jacobsen case seems to favor us (on appeal at least), so 
your clause is probably not needed:

http://www.rosenlaw.com/BadFactsMakeGoodLaw.pdf

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Donovan Hawkins, PhD                 "The study of physics will always be
Software Engineer                     safer than biology, for while the
hawkins at cephira.com                   hazards of physics drop off as 1/r^2,
http://www.cephira.com                biological ones grow exponentially."
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