[License-discuss] Open Source Eventually License Development

Eben Moglen moglen at softwarefreedom.org
Sun Aug 18 16:16:55 UTC 2013

On Sunday, 18 August 2013, John Cowan wrote:

  That surely won't work, but it's not what I take Larry to be describing.
  Rather, he is talking about a contract which grants the right *to the
  licensee* to distribute copies of his copy under the GPL, provided
  he does so not earlier than one year (or whatever) after the contract
  is formed.  This is no more objectionable than for me to sell you the
  right to publish my book, provided that you don't do so before 2015.
  When 2015 rolls around, you can go ahead and publish with no further
  action on my part, though if you publish in 2014 you are violating
  my copyright.
  So there is no question of the licensee suing the licensor for failing
  to license.  The license already exists.  Rather, the licensor would have
  to sue the licensee for copyright violation, in which case the licensee
  would point to the terms of the contract.

No, Mr Cowan.  The license only exists if the precedent license hasn't
been terminated or revoked during the term.  If it has, then the right
to distribute under free license has also terminated.  No one should
take the code in reliance on the free license after notice of
termination, because the free license is deceptive: the distributor is
infringing.  If the free license promised is GPL, then GPLv2 sect.  7
or GPLv3 sect.  12 would prevent the presumptive GPL distributor from
releasing under those circumstances, while ensuring that any
downstream recipients had protection; more permissive and in this
sense less careful licenses would allow the creation of the resulting
menace to navigation, but the apparent free license wouldn't in fact

So the presumptive GPL distributor who was terminated before the right
to free sublicensing vested *will* have to sue on the (wrongfully, from
her perspective) terminated agreement.  And here the issue of remedy,
as I have said all along, becomes fatally relevant.

This is not speculative.  The intended mode of use is to postpone the
free period to the term of a commercial proprietary license, which
must allow, for example, for termination for non-payment.  Termination
may happen unjustly, but if it happens the free license is destroyed,
The remedy in suit, even if the wrongful termination is proved, lies
in damages.  Also, please note that the free license promised in
future is an executory interest that will become voidable in
bankruptcy, if the party using the freedom postponement license goes
broke during the commercial term.  This is a particularly bad failure
mode, because free release in the event of commercial failure is one
of the few reasons to pay for the postponed freedom license.
[This is also the answer to RMS's question.  Yes, an "ordinary"
contract will work, except that the legal system will tend (in
Anglo-American jurisdictions in particular, at least) to award the
"wrong" remedy for breach, in that it will not require the issuance
of the free license.  One can fix that problem, and insure the
availability of the right remedy, by structuring the transaction
with the intermediary correctly.  That's what the conversation has
been about, net of confusion.]

  > But the resemblance is hardly accidental.
  Saying that Larry's resemblance to a first-year law student is "hardly
  accidental" is hardly civil; in fact, it's downright insulting.
I don't see why.  I think you're insulting first-year law students.
The people I spend my life with are among the smartest and most
capable young people in the States.  Many of them are young
superbrights, as are some of the street kids I have taught in
Bangalore, one or two of whom are much smarter than Larry Rosen, you,
or me.

Their resemblance to Larry (the US 1Ls, not the Bangalore street kids)
*is* more than accidental.  He was them once, they will be him later.
In twenty-six years of teaching at Columbia, Harvard and Virginia, as
well as abroad in several places, I have taught slightly more than
6,000 lawyers.  Many of them--now working in positions of high esteem
with great distinction--still show prominent intellectual and
emotional habits that have not changed over the course of their entire
professional lives, and which I remember vividly from a time when they
and I were much more young.

Raffaelo could draw a perfect circle freehand, Georgio Vasari says.
Freehand license drafting is a bad habit for those not so supernaturally
skilled, at whatever time of life.  Among the many students I have
taught, I have known a few who were hampered in life by their
inability to accept the advice of those who had thought more deeply.
That's also a bad trait for a lawyer, because all of us use the advice of
those more expert all the time.  As lawyers, and as teachers, we sell
judgment.  We are in turn judged on the judgment we show in those
whose advice and teaching we seek out as the basis for our own.

			      * * * * *

Another rule of the classroom with good application to mailing lists
(for the same reason in both cases: to acknowledge and respect the
patience of the others being subjected to the colloquy) is that when
it's over, it's over.  People can decide for themselves now what these
arguments and emotive behaviors add up to.

Regards to all.

 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

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