AW: For Approval: The netX Public Lisense (in plain text)

[Rick Moen]

Quoting Simon Phipps (webmink at gmail.com):

> Any requirement that a specifically identified entity (e.g. the
> original author) must receive notification in any form (including a
> code submission) in order for the license conditions to be satisfied
> creates an onerous accumulating burden on downstream participants and
> additionally may invalidate the license grant if the entity becomes
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> unreachable or ceases to exist.
  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

We've heard this frequently, but my recollection of business law (USA
variant) is that obligations that become objectively impossible cease to
be legally enforceable.  I'm thinking of this most particularly in the
context of contract law, where objective impossibility of performance
has long been recognised to be a valid defence against breach of
contract.  However, I expect the same principle to apply elsewhere in
civil law:  I'll admit I do not know any caselaw relevant to software on
that issue, but would expect a judge would hold the licence to still
apply, with the effect of the impossible condition being stricken from
the terms.

That's not to argue that clauses requiring notification of a named
entity without making provision for impossibility are a good idea.
They're obviously a very bad idea, setting up outcomes where the rights
of the parties are clouded by avoidable legal questions -- in addition to 
other adverse consequences you cite.  I'm just saying that bit about
invalidating the licence grant strikes me as doubtful.

It's frustrating that licence drafters keep making that mistake.  In 
particular, it seems as if chief counsel at software companies keep
making it, and then sending software engineers to get OSI approval of
the licences as a fait accompli.  In the long term, it'd be nice if 
such business would learn to consult OSI _while drafting_ licences
to make them useful, successful, and non-redundant ones, instead of just
regarding OSI as a rubber-stamp gatekeeper.

-- 
Rick Moen                       "Shakira molests air and calls it dancing."
rick at linuxmafia.com                                         -- Kelly Oxford
McQ!  (4x80)