[License-review] For Approval: Rewrite of License Zero Reciprocal Public License

[Rick Moen]

Quoting Bruce Perens (bruce at perens.com):

> That is correct so far and I don't expect it to change. But there is
> specific performance for breach of contract, and you know about the recent
> finding in *Artifex v. Hancom.*

I even read your blog post on the case, Bruce.

U.S. District Court for the Northern District of California dismissed
Hancom's interloculatory motion to dismiss[1], finding that copyright
owners who distribute software products through an open source licence
may be able to enforce the terms of that licence through _either_ breach of
contract or copyright infringement claims.

When last I followed the case, no contractual remedy had yet been assessed
against Hancom, Inc., but I would be astonished if the judge in that or
any other similar case ever ordered release of an infringer's
copyrighted property under terms not of his/her choosing.  For one
thing, it's never happened over four decades of copyleft history.  For
another, the traditional remedies for breach of contract are: money
damages, restitution, recission, reformation, and specific performance 
-- where the latter must be one that compels one party to perform, as
nearly as practicable, his or her duties specified by the contract, and 
is available only when money damages are inadequate to compensate the
plaintiff for the breach.

No copyleft acquaintance of my experience, and certainly not GPLv2 opted
for by L Peter Deutsch for Artifex Ghostscript, requires the licensee to
agree to licence the full code of a derivative work under it.  GPLv2
merely states (clause 5) that if you don't do that and assert that you
don't actually accept the licence, then you have no right to modify or
distribute the licensed work, and are in violation of copyright law.

Thus an infringer such as (per Artifex's assertion) Hancom is IMO likely
to end up being assessed copyright infringement remedies, which may cost
them a bit but isn't going to end up requiring any form of specific
performance, let alone involuntary licensing of its property.

(If a judge ever disagrees, then I'm wrong, but it's not happened to
date.)



[1] Hancom argued that Artifex had failed to plausibly demonstrate
existence of a contract, any claim for contract breach was pre-empted by
Federal copyright law, and that complications of extraterritoriality 
bar US firm Artifex from bringly a US copyright infringement claim
against a South Korean firm developing software outside the USA.