[License-discuss] Open Source Eventually License Development

[Eben Moglen]

On Saturday, 17 August 2013, Richard Stallman wrote:

  Suppose developer Ds give the code to organization O, and signs a
  contract with O giving O the right to distribute that code under the
  GNU GPL starting at a future date F.  Is that something O can rely on?
  Is there any way for D to retract that?

Yes, that's the alternative I originally recommended and that we have
been discussing Larry Rosen's objection to.  The agreement between D
and O might be one designed to create a fiduciary relationship, of
special trust and accountability, to which the legal system applies
uniquely high standards of responsibility.  It's this fiduciary
relationship with a third party which entitles you to the intervention
of mandatory orders to perform promises.  Another alternative in the
relationship with a trusted third party is a copyright assignment on
condition, where the property passing to the trusted third party is
"impressed with a trust" to perform the condition, which is free
release.  The FSF copyright assignment agreements that you and I
manage, and with which most lawyers in the trade are somewhat
familiar, are an example of this form.  Where the conditional
assignment isn't useful, as in some European copyright systems, the
fiduciary relationship design becomes paramount, as Axel Metzger
showed in his architecture of the Fiduciary License Agreement for FSF
Europe.  

The structural similarity is the trusted third party as transactional
facilitator and intermediary.  Organizations as various as FSF, the
Apache Foundation, the Eclipse Foundation, SFLC, and the Software
Freedom Conservancy serve in different ways as transactional
intermediaries.  Although their roles are little thought about in
typical discussion, they serve crucial strengthening purposes in the
legal structure of free software commerce.  The incorrect
architectural ambition to replace the legal role of the intermediaries
with "better" licenses or contribution agreements leads to numerous
confusions, of which the present conversation is just a minor one.

Eben

-- 
 Eben Moglen                            v: 212-461-1901 
 Professor of Law, Columbia Law School  f: 212-580-0898       moglen@
 Founding Director, Software Freedom Law Center            columbia.edu
 1995 Broadway (68th Street), fl #17, NYC 10023        softwarefreedom.org