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:mog...@softwarefreedom.org] Sent: Sunday, August 18, 2013 9:17 AM To: co...@mercury.ccil.org Cc: license-discuss@opensource.org; lro...@rosenlaw.com; mark.atw...@hp.com; ka...@gnome.org; r...@gnu.org; nat...@gonzalezmosier.com; mo...@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 _______________________________________________ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss