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

[Michael Poole <mdpoole@troilus.org>]

Adam McKenna writes:

> On Fri, Sep 16, 2005 at 08:05:02AM -0400, Michael Poole wrote:
>> Marco d'Itri writes:
>> 
>> > vorlon@debian.org wrote:
>> >
>> >>Is a license that requires micropayments in exchange for distribution rights
>> >>free?  If not, why is a cost measured in terms of legal risk imposed by the
>> >>license more free than one measured in hundredths of a cent?
>> > Because it's not obviously a "cost".
>> 
>> I have already explained why it *is* a cost.
>
> It's a potential cost, not an actual cost.  I think the cost is much lower
> than you are making it out to be.  If the lawsuit is truly frivolous (meant 
> only for harassment), the only cost should be that of retaining a local
> attorney in the chosen venue to represent you.  Appearing personally 
> would probably not even be required.

"Pet a cat if you see one."  "Ignore lawful orders from a superior
officer if you are in the military."  "Allow the copyright holder to
audit all your computer files for license violation if he demands it."
These are all potential costs, not actual costs.  Are any of those
something you would accept in a license for Debian?

Whether the lawsuit is frivolous or not is totally irrelevant.  What
is relevant is that the user is required to give up a legal protection
he normally has -- for no better reason than the convenience of the
copyright holder to sue users.  The cost is particularly aggravated by
the fact that we have already seen frivolous claims on the part of
copyright owners.

One well-publicized pending software case has already stretched for
more than two years and tens of millions in legal fees.  I think most
of us believe that case is meritless and was brought solely to harass
the defendant, yet it is certainly not just a question of the
defendant hiring a lawyer to appear in court and explain how frivolous
the claims are.

The absolute costs in that case are orders of magnitude higher than
what an individual litigant would expect to face, but the relative
costs are orders of magnitude *lower* (as a fraction of discretionary
budget).  A corporation may think little of paying a lawyer $50,000 to
argue a case until the plaintiff settles, and that cost is reasonably
likely to be covered by the company's insurance, but few individuals
would be able to do the same.

Michael Poole