opensource survivability clauses

[Justin Wells]

Here's a generic question: What kind of survivability clause is appropriate
in an opensource license? 

This is no good, if the license forbids introducing a dependency on 
non-free code (such as the LGPL does, and my SPL draft does):

   In the event that you breach this license, your rights to our software
   are terminated. However, the rights of all third parties who have 
   received a copy from you survive termination. 

If someone violates the license by introducing a dependency on non-free
software, and then distributes to third parties, those third parties now 
have a legal copy that incorporates the violation. The restriction 
against dependencies on non-free code thus has no practical effect.

But this is also no good:

   In the event that you breach this license, your rights to our software
   are terminated. 

Now if a reputable distributor makes an honest mistake and violates the 
license, everyone who has a copy of it can no longer use the software, 
at all, even though the mistake may be corrected immediately in new 
versions of the distribution. 

Worse, technically the distribution can no longer be distributed, as it 
contains software that nobody has a right to distribute!

This is better, but still no good:

   In the event that you breach this license, your rights to our software
   are terminated. However, the rights of third parties who have received
   a copy from you shall survive termination, if that copy has not been 
   contaminated by the breach. 

The problem is, what if, by an honest mistake, it HAS been contaminated
by the breach? Then once again no-one can use it (probably no way out of
that in this case), but much worse, no-one is allowed to distribute it
either! Potentially meaning that an entire pressing of hundreds of
thousands of CD's has to be scrapped, because it's illegal to
distribute some of the software contained on it.

So you probably need something convoluted, like this:

   In the event that you breach this license, your rights to our software
   are terminated. However, the rights of third parties who have received
   a copy from you shall survive termination, if that copy has not been 
   contaminated by the breach. Third parties will retain a right to 
   distribute a contaminated copy, however they may not use, modify, 
   display, or perform it. 

But this is getting pretty nasty. The distribution may contain code that
automatically displays or performs the software, and you can't really 
expect to impose any restriction on use either, under copyright law.

Other ideas?

Justin