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Re: discussion with the FSF: GPLv3, GFDL, Nexenta

The debian-legal checklist:

On Sun, Jun 03, 2007 at 11:28:22AM -0400, Michael Poole wrote:

Posted by a non-DD, non-maintainer and non-applicant: Check.

> Anthony Towns writes:
> > [...] And as far as the actual effects go,
> > I'm not sure you're going to be any better off without that clause in
> > your license: if you set foot in Australia, with an Australian judgement
> > against you, there's a good chance of it being enforced; and if you don't,
> > there seems to be a practical possibility of your extradition anyway,
> > based on [0].
> Extradition is for criminal cases, not civil cases.  I cannot imagine
> how a choice of venue clause would significantly either help or hurt a
> criminal defendant.

Confident assertion of legal facts, with little basis, no references,
and without an "IANAL" disclaimer, or "I am a lawyer and this is legal
advice", or a "I am a lawyer but this does not constitute legal advice":

Since copyright is increasingly covered by criminal penalties (in at
least Australia and the US) as well as civil ones, I don't think that
dismissal is even particularly useful.

> As has been previously discussed on -legal -- several times, I might
> add -- there are a variety of reasons that the rest your argument is
> flawed.  

Condescending dismissal of arguments: Check.

> To summarize: Most of the expense of non-local defense
> litigation is in advance of any court judgment on the merits.  The
> cost to dismiss a lawsuit for lack of personal jurisdiction is an
> order of magnitude (or more) less than litigating it through trial.
> It is harder to set aside a default judgment than to dismiss a
> complaint for improper venue.

Confident assertion of legal facts, [...]: Check.

In the example Don presented, of the Debian star maintainer removing
some output from the Debian star package, that the star upstream claims
constitutes a "copyright notice", then there are the following options:

	1. avoid the conflict by removing star from Debian
	2. avoid the conflict by replacing the output at upstream's request
	3. dispute the claim that they're copyright notices and keep acting

At this point upstream likewise has some choices -- ignore the (perceived)
license violation, sue in the court that's most convenient for them, or
sue in the court that's most likely to act against you. If they ignore
the violation, then that's where it ends. If they sue in the court that's
convenient for them, then:

	4. they need to demonstrate jurisdiction (which should be
	   relatively easy even without a choice of venue clause,
	   because Debian operates globally anyway: in the Berlin case
	   ffis would be a potential target, I'd imagine)
	5. they'd need to subpoena the respondent (ffis, pavel, SPI, whoever)
	   following usual procedures
	6. they'd need to convince the judge that the case is worth hearing
	   and that they're correct

At step (3) we've already decided upon a response to the claims, which we
could file either with representation or by post at point (6).

If those comments are dismissed by the judge and we're ruled against, we
have another choice:

	7. we can accept the ruling that we're violating the author's
	   copyright, and remove the program or comply with upstream's
	8. we can continue doing things the way we think's appropriate, but
	   not in places where we've been ruled against

And if upstream doesn't like that, which they presumably wouldn't,

	9. upstream can start asking other jurisdictions to enforce the
	   penalties already indicated

And as it happens, all of that applies without a choice of venue clause
too, the only option you lose is the chance of dismissing the case on
jurisdictional technicalities at point (6).

> Even if the license provides for recovery of costs and attorneys' fees

It does provide for recovery of costs and attorneys' fees. No need to
be hypothetical.

> Those are the costs of a choice-of-venue clause.  The (apparently one
> and only) benefit is that it is cheaper for the licensor to sue people
> and/or the results of lawsuits are more predictable.  

The benefit is that it's clearer as to how the license will be enforced.
Is it a big benefit? No, probably not. Supposedly Sun have it on their
TODO list to remove it, though presumably it's safe to say they've been
more focussed on getting Java under GPLv2 and seeing what happens with
GPLv3 over the past little while.

> Is that truly acceptable in a free software license?

Is it acceptable that a free software license makes it cheaper for
the licensor to sue people, or that the results of lawsuits are more
predictable?  Of course it is.

Is it acceptable that a free software license has drawbacks associated
with it for potential licensees? Well that's a no-brainer too: all
licenses (with the possible exception of public domain equivalents) have
drawbacks of some kind. 


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