On Thu, Jan 26, 2006 at 08:26:52AM -0500, Michael Poole wrote: Michael> Yorick Cool writes: Michael> Michael> > On Thu, Jan 26, 2006 at 01:21:10AM -0500, Glenn Maynard wrote: Michael> > Glenn> There are laws in place for determining the *appropriate* venue. If Michael> > Glenn> California really is the appropriate venue for the suit, as determined Michael> > Glenn> by the law, then that's fine. If the appropriate venue is Massachusetts, Michael> > Glenn> or somewhere else, then that's where it should be. Michael> > Michael> > Well then I fail to see the difference. I do not, as a rule, consider Michael> > criteria determined by the law as better than criteria determined by Michael> > the parties (or one of them). What's more, many national rules on Michael> > choice of venue are of the form "where the parties have remained Michael> > silent on the question, the appropriate venue shall be FOO". Michael> Michael> Can you elaborate on FOO? At least in the US, a suitable forum is one Michael> that has personal jurisdiction over the defendant and subject matter Michael> jurisdiction over the claims. You have very well elaborated on FOO, it is good example. That means that if a US licensor established in New York licenses software to me without specifying anything as to venue, then I shall potentially be attracted to New York in case of litigation. How is that different or better for me than if there was a choice of venue clause? Yet in one case it is free and the in the other it is? I don't understand why. Michael> > So you Michael> > can really say that contractual choices of venue are determined by the Michael> > law. I guess they should suddenly become acceptable since you seem to Michael> > consider that the law is always ok. Michael> Michael> Nonsense. The law allows me to charge someone $50 for the right to Michael> copy my software. That does not make a required $50 fee Michael> DFSG-free. Of course it's nonsense, but it's the logical conclusion to the reasoning according to which letting the law decide is very much better than a contractual choice of venue. I'm not the one defending that point of view. Michael> Michael> > More fundamentally, I fail to see how this discriminates against Michael> > anybody. In every conceivable case, the law will determine one venue, Michael> > and this one shall be detrimental to someone. Not because the law or Michael> > the license is discriminating, but because geography is. This kind of Michael> > clause doesn't change that fact in any way. Michael> Michael> The law will determine at least one venue for each suit, and that will Michael> vary by defendant and the particulars alleged in the suit. Setting Michael> venue by license discriminates against every defendant who is not Michael> normally subject to that venue, since it changes the rules for them in Michael> a potentially very costly way. And for others it might change the rules in a non-costly way or not at all. Michael> > In fact, many lawyers (me included) consider that in general, choice Michael> > of venue clauses are good practice because they heighten the degree of Michael> > predictability of the venue issue, which can be a real pain in the Michael> > ... Michael> Michael> In general, charging money as part of a contract is good practice Michael> because common law contracts require a consideration to be Michael> enforceable, and money is an obvious form of consideration. That does Michael> not make it a good practice in free software. Please read the whole reasoning. It is good prctice for a reason that is not lawyer selfishness. Heightening the degree of predictability is good for anyone, regardless of the licensing scheme. Michael> > Now I agree that they feel uncomfortable in software licenses. But Michael> > that doesn't necessarily make them non-free. Any lawsuit is Michael> > uncomfortable, for a number of reasons, and that of the venue is Michael> > *always* one of those reasons. This clause doesn't alter this fact for Michael> > better or for worse. Michael> Michael> Choice of venue alters the burden to the better for the licensor and Michael> the worse for most people in the world, since it allows a lawsuit Michael> against them to be brought in a foreign jurisdiction. Please understand that a lawsuit might always be brought against you in a foreign jurisdiction. That is not an innovation of the choice of venue clause. Ask Yahoo!. Michael> I claim that implied warranty also implies a purchase as the context Michael> for that warranty. It is foolish to expect that free software comes Michael> with a costly obligation on the part of Debian (or anyone else) to Michael> ensure it is fit for whatever purpose the user claims. Exposing Michael> authors or distributors to that kind of liability would severely Michael> hamper free software. As can be seen, default venue has not Michael> done so. And it still remains to be proven that choice of venue clauses hamper free software. Do you know of an example where one effectively has? -- Yorick
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