> Larry, my dear man, how do you arrange to get specific performance > of this promise to license in future once the underlying original license > is revoked?
How did it get revoked? This is quite simple, Eben: By dealing with this as a standard two-party contractual arrangement, the person who *buys* a commercial license upon the (irrevocable!) promise that it will be available *to him* a year later under the GPL, can thereby create an enforceable promise. Once he gets it (a year later!) under the GPL, he is free to distribute it to you or to any other trusted agent. Let me insist please that I do not support this business model! For many reasons, including those stated by you earlier, this business model is probably doomed to fail. I only attempt here to avoid philosophical/linguistic discussions relating to "performative utterances" and get us back to basic licensing law. Best, /Larry -----Original Message----- From: Eben Moglen [mailto:[email protected]] Sent: Friday, August 16, 2013 3:47 PM To: [email protected] Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Subject: RE: [License-discuss] Open Source Eventually License Development On Friday, 16 August 2013, Lawrence Rosen wrote: In the more traditional legal analysis, regardless of the wisdom of such a license, we prefer to treat written promises relating to future actions as binding upon the person making the offer -- at least where there is some form of consideration paid for the promise. A commercial software license that predates that eventually-FOSS license definitely includes sufficient consideration to enforce that promise. It isn't a mere unenforceable utterance. Larry, my dear man, how do you arrange to get specific performance of this promise to license in future once the underlying original license is revoked? It's a software license; contract damages will surely be limited to the return of the price paid, minus the fair value of the use of the software in the meanwhile, which equals zero unless the defendant's trial counsel actually spat on the jury. You say that equitable remedies are available requiring the making of a non-exclusive license to everybody in the world in compensation for an individual complaint of breach on a bilateral license agreement? This quite unusual and wholly speculative action for specific performance of an agreement to agree is supposed to be better assurance than a trust imposed upon a responsible third party to perform a necessary future legal action? The latter mechanism has been in full vigor since the mid-fifteenth century, and can be seen working constantly around us on every side. Of the cases attesting to the utility of your former contraption, ordering the release of software under free license as remedy for breach of a promise so to license in future, I have yet to read, subject to your correction, even one. Eben _______________________________________________ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
