[License-discuss] Open Source Eventually License Development

[Eben Moglen]

On Friday, 16 August 2013, Lawrence Rosen wrote:

  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.

Larry, my dear man, how do you arrange to get specific performance of
this promise to license in future once the underlying original license
is revoked?  It's a software license; contract damages will surely be
limited to the return of the price paid, minus the fair value of the
use of the software in the meanwhile, which equals zero unless the
defendant's trial counsel actually spat on the jury.  You say that equitable
remedies are available requiring the making of a non-exclusive license
to everybody in the world in compensation for an individual complaint
of breach on a bilateral license agreement?

This quite unusual and wholly speculative action for specific
performance of an agreement to agree is supposed to be better assurance
than a trust imposed upon a responsible third party to perform a
necessary future legal action?  The latter mechanism has been in full
vigor since the mid-fifteenth century, and can be seen working
constantly around us on every side.  Of the cases attesting to the
utility of your former contraption, ordering the release of software
under free license as remedy for breach of a promise so to license in
future, I have yet to read, subject to your correction, even one.


Eben