Yes, it is simple. I am asserting that in no meaningful sense is your agreement "enforceable," if during the period of the proprietary agreement your promisor revokes and refuses to issue the program under free license. You are implying that the remedy for breach of the contract in that situation would be an order to make the new (free, general) license previously promised. That's simply bushwah. "Specific performance," a mandatory remedial order to perform a promise, is not generally available at common law, as first-year students all learn. The remedy for breach of contract is damages in all but a few hoary exceptional situations. The damages measure in software cases is as I described it, in case after case in which software acquisition contracts are litigated. It would yield nominal damages, if any, in this situation. There's no prospect you can get the remedy for breach of this agreement that your word "enforceable" implies to lay readers.
Nor, as a general matter of the law of remedies, can you get an order requiring Acme to license under free license to all the world because he breached a bilateral license agreement with Beta, even if you could get such an order at all. The remedy would run no further than the injury alleged and proven. (There's a more fundamental problem, that your promise to make a license in future isn't an "enforceable agreement" at all, but only an "agreement to agree," not actionable in contract since a famous case about a load of hay in 1321. But I didn't bother pointing that out last time.) I explained before why a license is the wrong place for a promise to make a future license to different parties on other terms, and I have also explained how the result wanted should be achieved. You have offered a proposal for achieving the same result with license language, which I believe to be completely ineffective for simple reasons I have explained. Lawyers in need of technology will choose between methods based on their evaluation of our arguments. We are both agreed that there are practical non-legal reasons to doubt the utility of the business strategy in any event. So business people in need of a plan will proceed at their own risk. I think that's sufficient progress for one conversation. _______________________________________________ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
