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

On Sun, Jun 03, 2007 at 10:54:38PM +1000, Anthony Towns wrote:
> On Sun, Jun 03, 2007 at 04:51:40AM -0700, Steve Langasek wrote:
> > On Sun, Jun 03, 2007 at 12:25:14PM +0200, Wouter Verhelst wrote:
> > > Additionally, personally I don't think it's unreasonable for people to
> > > say "if you use my software in a way that I didn't want you to, I'll sue
> > > you in a court that works by a set of rules that I'm actually
> > > comfortable with". You know, it makes fighting those who do not follow
> > > your license the way you intended them to quite a bit easier.
> > That's a strawman.  The objection raised to choice-of-venue clauses is not
> > what they specify to happen when the licensee has *infringed* the license,
> > it's what they specify to happen when the licensee *hasn't* infringed the
> > license but the copyright holder files a lawsuit against them anyway out of
> > malice.

> I don't think that's meaningful; if I sue you in a court in Australia
> for not complying with debootstrap's license, and they find that you've
> infringed the license, it doesn't really matter if I'm doing that out
> of maliciousness or a genuine.

Why doesn't it matter?  If I've been sued because of something I've actually
done that infringed the license, then surely the DFSG and Debian shouldn't
be concerned with that (other than the question of whether what I've done is
something that the DFSG requires of copyright holders); but if I'm being
sued over something I *didn't* do, isn't it relevant that this license
clause is going to cost me something that I wouldn't otherwise have to give
up, just because the copyright holder has taken a dislike to me?

- If I don't have the resources to fight the case in a court overseas, I
  risk summary judgement; the cost to me is the liberty to travel unmolested
  to Australia at some future date when I might have resources for travel.
- If I do have the resources to fight the case overseas, I can file a motion
  to dismiss based on improper venue, which as a consequence of this license
  clause may or may not be accepted.
  - If the motion is granted, I can presumably ask for the plaintiff to pay
    my legal costs; but I presumably can't ask for the plaintiff to
    compensate me for my lost time (at least, this seems unlikely to be
    granted by this court since the existence of the contract's clause is
    likely to be a defense against assertions of bad faith; please correct
    me if I'm wrong).
  - If the motion is denied, I'm stuck litigating in a foreign court, which
    implies certain costs in time and money that I wouldn't otherwise have,
    some of which are not recoverable legal expenses and some of which are
    expenses that may not be awarded to the defendant in all jurisdictions
    and in all circumstances (concrete references here would be welcome):
    * If I get sued in Oregon, I have a wide range of local resources at my
      disposal to help me find appropriate legal representation; if I get
      sued in Australia, I'm stretching my connections pretty thin to find
      and evaluate legal counsel, and this process is going to cost more
      time and money on my part (and may leave me with inferior legal
      counsel anyway in the end due to logistical issues)
    * Effective realtime communication with the lawyer is more expensive
      (transoceanic phone calls), and more inconvenient due to timezone
      differences (fine, fine, not for *me*, but you know what I mean)
    * If I have to travel to Australia at any point during the suit, this
      is an expensive and time-consuming trip.

AFAICS, it's likely that the logistical problems of mounting a transoceanic
legal defense will also increase my up-front legal costs.  These costs are
recoverable if I win, but they may be large enough to make it infeasible for
me to take the lawsuit all the way to the end at all.  At least around here,
most suits end up being settled out of court due to the uncertainty of a
ruling in one's favor and the high cost of seeing litigation through;
increased legal expenses imply an increased probability of settling out of
court, which means the cost is whatever is specified in the settlement, plus
lost time, plus whatever legal expenses are incurred up to that point.

There's also the additional issue that an evil copyright holder may be more
likely in the first place to file a lawsuit that they know they can't win,
if they can do so in their own home jurisdiction at low cost to them with a
higher possibility of a default judgement or an out-of-court settlement.

I'll grant that the absolute theoretical minimum cost increase to someone
targetted by the copyright holder as a result of this clause is still zero
(and, in exceptional cases in exceptional jurisdictions, perhaps less than
zero).  But that looks to me like a pretty low-probabilty outcome; in spite
of the difficulties in measuring the probability of particular outcomes, or
their associated costs, I don't think they should be ignored as a fee.

As an analogy, suppose that a license included the following clause:

  By distributing the covered work, you agree that the copyright holder can
  compel you at any time to play in an on-line black jack tournament at his
  website, geekblackjackstars.net, with an initial ante of $100.

Should Debian consider this to be a free license because the clause won't
necessarily be invoked and because some people win at blackjack?

> 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].

If the license doesn't have this clause and the copyright holder sues me in
Australia, the case can be dismissed on grounds of improper venue.  This is
the default state of affairs, and is exactly how this case would play out
even if I didn't have a license from (and wasn't distributing any software
written by) the hostile Aussie.

If the copyright holder is alleging criminal copyright infringement, yes,
extradition applies.  But not all copyright infringement has criminal
penalties associated with it; in the event of an allegation that doesn't,
we're back to the usual rules for determining venue in civil cases.

In the specific case of California (the default CDDL venue), the California
Supreme Court has ruled that distributing something on the Internet from
outside of the state does *not* give California's courts personal
jurisdiction over defendants[1].  So the only thing that could *possibly*
tie me to a California venue would be this license clause.  (As for Germany,
the other real-world venue operating here, an opinion from someone versed in
German law would be useful.)

> Simon Phipps' argument, presented at debconf last year, is (aiui) that
> the clause only comes into play when both parties are organisations
> that cross multiple jurisdictions anyway -- in which case they're both
> presumed to have a presence in the given jurisdiction anyway, and could
> reasonably be expected to be following its rules, afaics.

Has this opinion been confirmed by a lawyer on *SPI's* payroll, not just by
one on *Sun's* payroll? :)  The text of the license does not limit itself to
resolving jurisdictional ambiguities, it asserts that the listed venue
applies in all cases -- which as we've seen, has the opposite effect of
*adding* uncertainty.

There are ways that a choice-of-venue clause could be fixed to not be
unfairly weighted in favor of the licensor, to be sure; one that has been
discussed in the past is to effect a choice-of-venue clause that only
applies when the licensor is named as a defendant, and it seems you've just
identified another one, that of effecting a choice-of-venue clause that
specifies it only takes effect when disambiguation is needed.  The current
clause, though, puts the copyright holder in the dealer's seat, and the
house always wins.

Steve Langasek                   Give me a lever long enough and a Free OS
Debian Developer                   to set it on, and I can move the world.
vorlon@debian.org                                   http://www.debian.org/

[1] Pavlovich v. The Superior Court of Santa Clara County; it's so fun to be
    able to cite a DD as a good legal precedent.

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