Date: Wed, 07 May 2003 22:19:56 -0700 From: Terry Lambert <tlambert2@mindspring.com> To: "Gary W. Swearingen" <swear@attbi.com> Cc: chat@FreeBSD.ORG Subject: Re: open source license with 24 month proprietary clause Message-ID: <3EB9E8FC.39A86BA1@mindspring.com> References: <Pine.LNX.4.43.0305032011270.15827-100000@pilchuck.reedmedia.net> <20030505170121.GA7950@HAL9000.homeunix.com> <muptmulqyn.tmu@localhost.localdomain>
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"Gary W. Swearingen" wrote: > I got this off some lawyer's web site: > > More and more states are changing their laws to eliminate > consideration as a prerequisite to a valid contract thus > contributing to the uniformity of law. 8-). That's the great thing about lawyers: get two of them in a room, and the only thing they can agree on is to disagree. > And I've read that the revocation is dependent upon the licensor first > restoring the licensee to his state before having accepted the license, > though I'm sure that that is a very fuzzy and debatable issue. Revocation of the Net/2 licenses by UCB, and revocation of the UCSD P-Code system licenses by UCSD are two examples of case law that contradict your "some lawyer's web site". > As > examples, you have an implied license to walk across my property, but I > can withdraw that license at any time, but if I've *given* you license > to build and operate a store on my property, I can't withdraw that > license without first buying the store for a reasonable price. With > software, it would probably be a mistake to try revoking a license > after the software has been incorporated in a derivative. You can't even tell me not to walk across your property, if you haven't prevented me from doing it for some period of time. But it's not a license that prevents you from doing this, it's because I've established an interest through what's called a "prescriptive lien via adverse use". 8-). One good thing about people trying to treat IP as real property is that if they are successful, I'll be able to use their software patents, and if they don't stop me immediately, I'll be able to claim a prescreptive lien through adverse use. > Someone has said that the licensee's agreement not to sue the licensor > (a part of all known software licenses) is a significant consideration, > but a convincing argument for that was not supplied. It's not. The hold harmless is something the licensee would need to do anyway, if they didn't take the software. So it's not like they've given anything to the licensor that they didn't already have. -- Terry
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