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Re: Draft Summary: MPL is not DFSG free

Edmund GRIMLEY EVANS wrote:

> Jim Marhaus <marhaus@sdf.lonestar.org>:

>> |      With respect to disputes in which at least one party is a citizen
>> |      of, or an entity chartered or registered to do business in the
>> |      United States of America, any litigation relating to this License
>> |      shall be subject to the jurisdiction of the Federal Courts of the
>> |      Northern District of California, with venue lying in Santa Clara
>> |      County, California, with the losing party responsible for costs,
>> |      including without limitation, court costs and reasonable
>> |      attorneys' fees and expenses.
>> This clause restricts court venue to Santa Clara County, CA. Venue
>> restrictions may force licensees to travel unreasonable distances to
>> defend themselves in court, and could be used to effectively revoke the
>> license (Tentacles of Evil). For example, if the licensor filed a
>> frivolous lawsuit against a licensee, the latter would be forced to
>> travel to the licensor's home court or hire a representative, since most
>> jurisdictions summarily rule against absent defendants.
> I don't know much about the US legal system. How different is this
> from the ordinary default situation? If I were "a citizen of, or an
> entity chartered or registered to do business in the United States of
> America" would I normally be able to safely ignore cases brought
> against me in Santa Clara County?

No; you wouldn't ignore it, but you also wouldn't have to travel.  You would
have to be notified of the suit locally.  Normally, you would respond to
such a case by filing a motion declaring that venue was inappropriate
there, and that any such suit should be in your local court (in Tompkins
County, New York, perhaps).  You can normally file *that* sort of motion by
going to your local court and using certified mail, without travelling out
of town.  :-)  The question of where the case would actually be held would
then be decided by who would suffer more pain by travelling.

> Also, could someone explain how this sort of condition would work in
> practice? Suppose I'm the licensee. The licensor would go to court in
> Santa Clara County and say what, exactly? I haven't signed anything,
> so how would the licensor convince the court that I have agreed to be
> sued there?
You haven't been granted any rights except under the agreement, so if you
didn't agree, you don't get any of the rights in the agreement.  Much like
the way the GPL is enforced.

> If the court is willing to take the licensor's word for 
> it, then couldn't the licensor sue me in Santa Clara even if I had
> never had anything to do with the software?

Yes, but you could then tell them and the court that they had to move the
suit to where you lived.  With this clause, you couldn't (unless the clause
was ruled to be unenforcable).

There are none so blind as those who will not see.

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