[License-discuss] Open Source Eventually License Development

Sun Aug 18 18:03:11 UTC 2013

I'll elect to focus on Eben's legal arguments rather than his ad hominem
attacks. I do so with the intent of alerting the rest of this list to his
misstatements of the law, not to try to educate him. 

Eben is right that a license can terminate before its terms are completely
executed, for reasons of bankruptcy or perhaps some form of contractual
breach. But talented lawyers have dealt with these concerns many times and
have potential solutions available.

For example, the Open Web Foundation Agreement ("OWFa") [1] deals directly
with the fact that copyrights and patents can change ownership (voluntarily
or involuntarily). The licensors in that OWFa in section 1 grant a
"perpetual" copyright license and, in section 2, "on behalf of myself and my
successors in interest and assigns, irrevocably promise" not to assert their
patent claims. Lest that irrevocable patent license not be clear enough, we
repeat in section 3.1.3:

    "Notwithstanding the personal nature of my promise, this promise is
     intended to be binding on any future owner, assignee or exclusive
     licensee who has been given the right to enforce any Granted Claims
     against third parties."

Then, because of the quite reasonable fear of potential bankruptcy of the
licensor, we locked the license in with the following provision in 3.1.4:

     "Solely for purposes of Section 365(n) of Title 11, United States
Bankruptcy
     Code and any equivalent law in any foreign jurisdiction, this promise
will 
     be treated as if it were a license and you may elect to retain your
rights 
     under this promise if I (or any owner of any patents or patent
applications
     referenced herein), as a debtor in possession, or a bankruptcy trustee,

     reject this non-assert."

And then, because some of us are still paranoid, we added this section 6:

     "I agree that I will not intentionally take or willfully assist any
third party
      to take any action for the purpose of circumventing my obligations
under
      this CLA."

Could a court invalidate this license? Yes, it would have the authority to
do so. 

Is that likely? No.

/Larry

[1] http://www.openwebfoundation.org/legal/the-owf-1-0-agreements/owfa-1-0 

-----Original Message-----
From: Eben Moglen [mailto:moglen at softwarefreedom.org] 
Sent: Sunday, August 18, 2013 9:17 AM
To: cowan at mercury.ccil.org
Cc: license-discuss at opensource.org; lrosen at rosenlaw.com; mark.atwood at hp.com;
karen at gnome.org; rms at gnu.org; nathan at gonzalezmosier.com; monty at askmonty.org
Subject: Re: [License-discuss] Open Source Eventually License Development

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 exist.

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

-- 
 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