[License-discuss] Open Source Eventually License Development

[Bradley M. Kuhn]

> On Wednesday, 14 August 2013, John Cowan wrote:
>> Suppose that Alice sells Bob the source code to Yoyomat, a
>> proprietary program with delayed GPL.  After the term has passed, Bob
>> may now distribute *that very copy* of Yoyomat freely to Charlie
>> under the terms of the GPL.  In the scenario you outline, he may not;
>> he must obtain a new copy from the escrow agent.

The main logistical problem occurs in those cases not where Bob received
source code under some "no distribution permitted" license, but when Bob
received *only* proprietary binaries of Yoyomat and has no source.

In that case, Bob likely has no method (logistically) to get what he
knows is Complete, Corresponding Source (CCS) for Yoyomat
(except from Alice herself).  Distribution of those binary bits
under GPL would be copyright infringement because Bob couldn't make
such distribution accompanied with CCS (or a valid offer therefor).

Bob *might* be able to show, as a defense to a copyright infringement
claim, that the source from the third-party escrow was indeed CCS for
the old proprietary binary that Alice gave Bob.  That'll require some
effort to show in practice (especially if much time has gone by) since
GPL's CCS is much more than just the source code itself.  If Alice is
well-intentioned, this issue is unlikely to come up.  However, if Alice
is a bad actor, this issue would cause serious trouble.

Admittedly, this is only an issue for copyleft licenses in this
situation.  For "later liberation" under permissive licenses, Bob's
compliance obligations when distributing the very same proprietary bits
are probably easily and obviously met (e.g., properly displaying
accurate copyright notices).

I reiterate that I am not a fan of these sort of "liberate it later"
licensing schemes, but if they are practiced in any event, it'd be good
to make sure they function such that later Free Software license
compliance is easy for everyone.  I suspect that's what John is seeking
here as well, and that's a good goal.  I hope folks won't be unduly
critical of those trying to explore that question.
-- 
   -- bkuhn