[License-discuss] Open Source Eventually License Development

[Lawrence Rosen]

> 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?

How did it get revoked? 

This is quite simple, Eben: By dealing with this as a standard two-party
contractual arrangement, the person who *buys* a commercial license upon the
(irrevocable!) promise that it will be available *to him* a year later under
the GPL, can thereby create an enforceable promise. Once he gets it (a year
later!) under the GPL, he is free to distribute it to you or to any other
trusted agent.

Let me insist please that I do not support this business model! For many
reasons, including those stated by you earlier, this business model is
probably doomed to fail. I only attempt here to avoid
philosophical/linguistic discussions relating to "performative utterances"
and get us back to basic licensing law.

Best,

/Larry

-----Original Message-----
From: Eben Moglen [mailto:moglen at softwarefreedom.org] 
Sent: Friday, August 16, 2013 3:47 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

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