[RFC] Serious Open Source (SOS) License -- Injunctive Relief clause

Lawrence Rosen lrosen at rosenlaw.com
Mon Mar 16 18:59:21 UTC 2009


WTFPL User wrote:
> I didn't ask for approval. The subject of this [RFC] inquiry is much
> more narrow: what do you folks think about a reciprocal open source
> license with a pretty standard contractual injunctive relief clause.
> To repeat: the idea is to create a license in which licensee's
> distributees are intended Third Party Beneficiaries with contractual
> right to have access to source code provided by licensee so that a
> breach or threatened breach/attempt to deny that contractual right can
> be easily stopped by injunction/specific performance.

If you are expecting any useful legal opinions about third party
beneficiaries, injunctive relief, specific performance, and other
contractual law issues, forget about getting it here. Go to law school. It
may be worth the tuition for you.

This is not to say those aren't interesting topics for the lawyers and
near-lawyers on this list, but most of us won't waste time with vague
hypothetical puzzles leading nowhere. This is license-review, not "let's
talk about stuff...."

/Larry



> -----Original Message-----
> From: wtfpl user [mailto:wtfpl.user at googlemail.com]
> Sent: Monday, March 16, 2009 11:36 AM
> To: Matthew Flaschen
> Cc: License Review
> Subject: Re: [RFC] Serious Open Source (SOS) License -- Injunctive Relief
> clause
> 
> 2009/3/16 Matthew Flaschen <matthew.flaschen at gatech.edu>:
> > wtfpl user wrote:
> >> 2009/3/15 Bruce Perens <bruce at perens.com>:
> >>> A really Serious License would have proper legal review by at least
> one
> >>> qualified attorney. Can you get that?
> >>> I'd like to hear from your attorney a credible explanation regarding
> the
> >>> effectiveness of this language.
> >>
> >> Well, see for example
> >>
> >>
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=app\20030430
> \02-0836&invol=1
> >
> > Don't dodge the issue.  Bruce specifically asked you to come back with a
> > legal review of /your/ license.  As is, you're nowhere near complying
> > with the process at http://www.opensource.org/approval
> 
> I didn't ask for approval. The subject of this [RFC] inquiry is much
> more narrow: what do you folks think about a reciprocal open source
> license with a pretty standard contractual injunctive relief clause.
> To repeat: the idea is to create a license in which licensee's
> distributees are intended Third Party Beneficiaries with contractual
> right to have access to source code provided by licensee so that a
> breach or threatened breach/attempt to deny that contractual right can
> be easily stopped by injunction/specific performance.
> 
> Bruce Perens seems to doubt validity of "the part about the licensee
> consenting..."
> 
> Well, consider:
> 
> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=app\20030430
> \02-0836&invol=1
> 
> "The marketing agreement expressly authorizes injunctive relief for a
> breach or threatened breach of the confidentiality provision.  The
> agreement also sets forth an acknowledgment by Express "that the
> damages to be suffered by CIN as a result of such a breach would be
> immediate and irreparable and would necessitate such injunctive
> relief."  This concession obviates the need to delve into the merits
> of the parties' dispute beyond what is required to determine whether
> there is a threatened breach of the confidentiality provision. ... In
> light of this evidence, the district court did not abuse its
> discretion in determining that Express, at a minimum, threatened to
> breach the confidentiality provision, justifying injunctive relief.
> 
>             Express raises other arguments concerning the scope of the
> injunction.  We find these arguments unnecessary to address or without
> merit and affirm the district court's ruling in its entirety.
> 
>             AFFIRMED."
> 
> Here's more:
> 
> http://www.cwm-law.com/articles/pdf/pdf_Schultz-Snow%20Article2.pdf
> 
> "PRACTICE TIPS
> 
> A. CONTRACT FOR CONSENT TO INJUNCTIVE RELIEF
> 
> An injunction may be more easily obtained if the party against whom
> the injunction is sought has consented to the injunctive relief,
> typically by way of a settlement or other agreement. The Virginia
> Supreme Court has approved issuance of injunctions where authorized by
> agreement:
> 
> If parties, for valuable consideration, with their eyes open, contract
> that a particular thing shall not be done, all that a court of equity
> has to do is to say by way of injunction that which the parties have
> already said by way of covenant -- that the thing shall not be done;
> and in such case the injunction does nothing more than give the
> sanction of the process of the court to that which already is the
> contract between the parties. It is not, then, a question of
> convenience or inconvenience, or of the amount of damage or injury. It
> is the specific performance, by the court, of that negative bargain
> which the parties have made, with their eyes open, between
> themselves."
> 
> Here's another one:
> 
> http://bulk.resource.org/courts.gov/c/F2/193/193.F2d.818.4270_1.html
> 
> "But the rights of parties are not governed by comparing the pecuniary
> loss to one party and the benefit to another, where, as here, the
> rights of the parties are founded in contract and are sufficiently
> explicit. 28 Amer. Juris. Injuctions, Sec. 55. If the rights and
> duties of the parties are fixed by contract, it is not the question of
> convenience or inconvenience, or the comparative amount of damage or
> injury resulting from the enforcement of the right. It is the specific
> performance by the court of that bargain which the parties have made,
> with their eyes open. Lindsay v. James, 188 Va. 646, 51 S.E.2d 326,
> 333, 7 A.L.R.2d 597. This is especially true, we think, when the
> contract the parties have made, and which is sought to be enforced, is
> affected with a public interest. We think the rights and duties of the
> parties are clear and unmistakable. The action of the unit is
> responsive to the judgment of the operating committee. The unit has no
> adequate remedy at law, and it is therefore entitled to invoke
> equitable processes in the enforcement of its rights, duties and
> obligations conferred upon it by the plan of unitization.
> 
> The judgment of the court is reversed with directions to grant the
> relief sought."




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