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

[Adam McKenna <adam@flounder.net>]

On Fri, Sep 16, 2005 at 02:36:30PM -0400, Michael Poole wrote:
> 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 copyright holder can sue users (or even random people off the street, for
that matter) whether he put a choice of venue clause in his license or not.

> 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.

Strawman.  The only costs relevant to this discussion are costs that would 
be incurred as a result of the suit being in the copyright holders's venue,
as opposed to the defendant's.  The other costs would be the same, 
regardless of venue.

> 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.

Unless you are considering only the monetary costs of defending yourself,
this is really not relevant.  A person defending himself must spend many
hours of time preparing his defense, and many hours of time away from work to
appear in court, at depositions, etc.  This would be the case whether the
venue was local or remote.

Yes, there is a risk of a COV clause being used for unethical purposes, but
IMO the risk is low enough that we need not consider every licenses with COV
clause non-free.  If we don't trust a particular vendor we can simply choose
not to distribute their software.

--Adam
-- 
Adam McKenna  <adam@debian.org>  <adam@flounder.net>