[License-discuss] Open Source Eventually License Development

[Lawrence Rosen]

Dear Eben,

You wanted to cut short our conversation, but I believe it is important to
clarify the arguments you made about the enforceability, through specific
performance, of a software license.

It is ironic that you wrote: "Specific performance, a mandatory remedial
order to perform a promise, is not generally available at common law, as
first-year students all learn." You must realize, of course, that the great
(unreasonable) fear of the GPL is that a licensee will be required to
disclose his other software that merely links to the GPL program. How would
this be required if not by an order for specific performance?

To quote your email again: "That's simply bushwah."

I was not referring to specific performance, by the way. I agree with you
that specific performance in the software licensing context is unlikely,
although we hear of it apocryphally when certain GPL advocates threaten to
force proprietary source code disclosure. 

Nor was I suggesting that the license convert from "commercial to a specific
licensee" to "free for all." As I said in my previous email, it can convert
to "free for that specific licensee", who is then free under the GPL to
redistribute it to all. That part is truly simple. That's how you designed
the GPL!

It would be better to write an "Open Source Eventually" license that
converts to the GPL after one year as a self-executing, automatic event
certain to occur because the consideration was already paid for it in the
commercial phase of the license. Perhaps you can ask one of your first year
law students to draft such an enforceable agreement? They can do it as a
service to the non-lawyers on this list.

Not that I want to see an "Open Source Eventually" license.... We're
speaking hypothetically here, aren't we?

/Larry


-----Original Message-----
From: Eben Moglen [mailto:moglen at softwarefreedom.org] 
Sent: Friday, August 16, 2013 5:33 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
Subject: RE: [License-discuss] Open Source Eventually License Development

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.