Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

[Michael Poole <mdpoole@troilus.org>]

David Nusinow writes:

> On Wed, Sep 14, 2005 at 04:56:09PM +0200, Henning Makholm wrote:
>> Scripsit David Nusinow <david_nusinow@verizon.net>
>> 
>> > Furthermore, the choice of venue clauses don't impose any sort of cost on
>> > the freedoms we expect from software.
>> 
>> Yes they do. You have to suffer the choice-of-venue clause in order to
>> get the freedoms we expect from software. That is a cost. It is a cost
>> I do not want to pay just to get some software on my computer, and it
>> is a cost that I cannot in good conscience advocate that Debian users
>> should have to pay in order to get the freedoms of software that we
>> promise comes with freedoms.
>
> This is nonsense. A choice of venue clause does not impose any fee on
> using, modifying, and distributing the software. It *only* has relevance in
> the realm of litigation.

As a number of cases have shown, the realm of litigation is a concern
for software users.  Any time a user accepts a choice of venue clause,
they agree to be bound by that particular court's rulings, and no one
seems to claim it is cheaper to defend oneself in a foreign court than
in one's normal jurisdiction.

At least in the US, courts have held that a conditional promise is a
thing of contractual value, and when that promise is not directly
related to a piece of software, it prima facie qualifies as a use or
modification fee.

Saying that choice of venue is free seems no different than saying
"You agree to not use this software in connection with the production
of nuclear energy" or "You agree to not use this software for any
military purpose" is free -- all are waivers of a course of action
that the user has in the absence of that license.  After all, just
like choice of venue, those only have any effect in the realm of
litigation!

[snip]
> Furthermore, we are not imposing anything on our users. They are free to
> not install such software if they choose. We can't completely protect
> people from being sued to begin with.

These facts are irrelevant.  Users have the freedom to install (or not
install) database software with a license that prohibits them from
publishing benchmark results.  That restriction still makes such
software ineligible as for inclusion in Debian.  We cannot protect
people from being sued, but we can protect people from waiving their
normal statutory rights.

Michael Poole