[License-discuss] Open Source Eventually License Development

[Lawrence Rosen]

Eben Moglen explained:
> 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.

That's not at all what I objected to. I was merely responding to your
argument that your way (setting up a fiduciary trust relationship) is the
only reliable way to accomplish this goal of "Open Source Eventually."

But now that you ask, I would object to turning this into a discussion of
who qualifies as fiduciary "of special trust and accountability." Some of us
have different opinions about that. But if that special trust is, as you
predict, honored by that fiduciary, then certainly that software will
eventually be released under the GPL. Your way could work.

As for Richard's question about how to enforce these high standards of
responsibility, maybe you can refer that to a law student to review the ways
one can force a charitable foundation to satisfy the conditions imposed by a
donor. My favorite historical case, in the context of a will, is here:

http://www.jdsupra.com/legalnews/reliving-the-200-year-saga-of-benjamin-f-80
7851/ 

/Larry


-----Original Message-----
From: Eben Moglen [mailto:moglen at softwarefreedom.org] 
Sent: Saturday, August 17, 2013 11:18 AM
To: rms at gnu.org
Cc: lrosen at rosenlaw.com; 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 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
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