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

On Tue, Jun 05, 2007 at 02:09:06AM -0700, Steve Langasek wrote:
> 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, [...]

If you're going to be sued for something you didn't do, and lose because
in your absence you're assumed to have done it, why not go the whole
hog and just have them assert you've used/distributed a program you've
never actually used/distributed?

AFAICS this is an issue only when there's a not completely trivial
possibility that you have actually violated the license.

> - 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.

Speaking of which, the linux.conf.au 2008 CFP is open:


I suspect that anyone who can get their paper accepted will be able to get
their travel costs covered by one of LCA, Debian or the Linux Foundation.

(Kickass segues 'r' us)

>     * 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)

For Australia, assuming you were being sued over free software stuff
that you'd be doing in good faith, I think we could do a fairly good
job helping you out.

>     * 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)

Yes, Australian lawyers seem to be in a very inconvenient timezone for
me... ;)

> 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?

Clearly not. BTW, that site doesn't seem to exist.

The difference between blackjack and choice of venue is that in one
case you're being compelled to do something, and in the other you're
pre-determining an argument. AFAICS that breaks that analogy.

Two different analogous licenses might be:

  By distributing the covered work, you agree that the copyright holder
  can sue you for violations of the license.

  If you distribute the covered work, the licensor agrees not to sue you
  in any jurisdiction other than Berlin, Germany.

I'd consider both those to be clearly free. Choice of venue goes beyond
either of them, certainly. But I'm still not seeing a way in which it
goes so far beyond them as to become non-free.

Heck, is choice of venue actually different to the combination of those

> > 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? :)  

TTBOMK, no. ITYM "acting on behalf of SPI" rather than "on SPI's payroll"
btw. :)

> [...] The current
> clause, though, puts the copyright holder in the dealer's seat, and the
> house always wins.

Well, that's only true over the long term, and I don't think it's
necessarily true even over the long term for court cases.


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