[License-discuss] Open Source Eventually License Development

[Lawrence Rosen]

Eben Moglen wrote:
> 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."

Hi Eben,

J.L. Austin described performative utterances of the form "I now pronounce
you man and wife," used in the course of a marriage ceremony. Such
statements are neither true nor false (not "truth-evaluable"). [1] But I
don't understand the relevance of this concept to an "Open Source
Eventually" license. 

In the more traditional legal analysis, regardless of the wisdom of such a
license, we prefer to treat written promises relating to future actions as
binding upon the person making the offer -- at least where there is some
form of consideration paid for the promise. A commercial software license
that predates that eventually-FOSS license definitely includes sufficient
consideration to enforce that promise. It isn't a mere unenforceable
utterance.

It is always better to get that FOSS promise now, in writing.

/Larry

[1] http://en.wikipedia.org/wiki/Performative_utterance 



-----Original Message-----
From: Eben Moglen [mailto:moglen at softwarefreedom.org] 
Sent: Wednesday, August 14, 2013 3:44 PM
To: lrosen at rosenlaw.com
Cc: rms at gnu.org; license-discuss at opensource.org; monty at askmonty.org;
karen at gnome.org; mark.atwood at hp.com; nathan at gonzalezmosier.com;
rc at gonzalezmosier.com
Subject: RE: [License-discuss] Open Source Eventually License Development

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.