[License-discuss] Open Source Eventually License Development

[Eben Moglen]

Whatever the truth of the adage may be, the point for us is that none
of this has anything to do with licensing.  Fred Trotter was actually
asking a question, to which the correct answer is: "You don't need a
license to make something free software at a certain date in the
future.  Giving a copy to an appropriate agent, with written
instructions to publish under, e.g. GPLv3 or ASL 2.0 on the future
date, is quite sufficient.  Any number of reliable intermediaries for
such purposes exist, and would provide the service gratis."

This isn't a matter for copyright licensing, because licenses are, in
J.L. Austin's term, "performative utterances."  They are present acts
of permission, not declarations of future intention, like testaments.
There's no point in a copyright holder writing a license that says
"these are the terms today, and those will be my terms tomorrow."
Unless the license is irrevocable, only the terms of present
permission matter.  Once the software *is* free, on the other end,
only the terms of permission then granted matter, regardless of any
prior expression of an intention to provide different free terms.  So
there is no legal issue of significance involved in the business model
of postponing freedom for interim proprietary distribution.  Simple
conveyancing is legally quite sufficient.  The business method does
not fail because people have mumbled incorrect magic words.

It is simple to demonstrate from an economic perspective that the
value of the proprietary product sold on a fixed-term delay of free
licensing converges, after the first such period of distribution, to
the value of one upgrade minus the cost of applying it, assuming the
downstream user attributes absolutely no value to free licensing over
proprietary licensing, which is in fact usually a bad assumption.
This clearing price is too small to be profitable except at very high
volumes or in other extraordinary circumstances.  The business model
fails for simple economic reasons--because the competition provided
for one's present product by the last version one has freed is almost
always too strong to withstand--not for legal ones.

The natural history is in accord with theory on this subject.  RMS was
correct that this was a problematic compromise, but even more
problematic for the folks on the other side.