[License-discuss] Open Source Eventually License Development

[Eben Moglen]

Yes, it is simple.  I am asserting that in no meaningful sense is your
agreement "enforceable," if during the period of the proprietary
agreement your promisor revokes and refuses to issue the program under
free license.  You are implying that the remedy for breach of the
contract in that situation would be an order to make the new (free,
general) license previously promised.  That's simply bushwah.
"Specific performance," a mandatory remedial order to perform a
promise, is not generally available at common law, as first-year
students all learn.  The remedy for breach of contract is damages in
all but a few hoary exceptional situations.  The damages measure in
software cases is as I described it, in case after case in which
software acquisition contracts are litigated.  It would yield nominal
damages, if any, in this situation.  There's no prospect you can get
the remedy for breach of this agreement that your word "enforceable"
implies to lay readers.  

Nor, as a general matter of the law of remedies, can you get an order
requiring Acme to license under free license to all the world because
he breached a bilateral license agreement with Beta, even if you could
get such an order at all.  The remedy would run no further than the
injury alleged and proven.

(There's a more fundamental problem, that your promise to make a
license in future isn't an "enforceable agreement" at all, but only an
"agreement to agree," not actionable in contract since a famous case
about a load of hay in 1321.  But I didn't bother pointing that out
last time.)

I explained before why a license is the wrong place for a promise to
make a future license to different parties on other terms, and I have
also explained how the result wanted should be achieved.  You have
offered a proposal for achieving the same result with license
language, which I believe to be completely ineffective for simple
reasons I have explained.  Lawyers in need of technology will choose
between methods based on their evaluation of our arguments.  We are
both agreed that there are practical non-legal reasons to doubt the
utility of the business strategy in any event.  So business people in
need of a plan will proceed at their own risk.  I think that's
sufficient progress for one conversation.