Re: Choice of venue, was: GUADEC report
lex@cc.gatech.edu writes:
> Nathanael Nerode <neroden@twcny.rr.com> wrote:
>> <posted & mailed>
>
> Please don't do that; I'm on the list.
>
>
>> lex@cc.gatech.edu wrote:
>> > I have argued that it may well be *good* for a license to specify choice
>> > of venue. It is a nice thing to know which laws apply to the agreement,
>> > and that's what a choice of venue clause tells you (at least, to the
>> > point anything is certain in law).
>>
>> Wrong wrong wrong. Please pay attention.
>
> I know all of what you say and I stand by the claim. Instead of
> flaming, please participate in the debate.
Nathanael's just getting frustrated at having explained this over and
over again. A choice of venue clause, however, *doesn't* tell you
which laws apply to the agreement.
>> Yes, these are different. Courts can, and will, decide cases based on
>> foreign laws. If there is no choice-of-venue clause, venue is decided
>> (among the possible jurisdictions) mostly by how much of a pain it is for
>> the various litigants to travel (the least pain is the best place).
>
> The word "mostly" is important here.
So are you entirely dropping your argument that COV clauses are good
because they let you know which laws will apply to the agreement?
> Whether or not a choice of venue clause is in the license, the
> venues that will be used for all future cases are not completely
> determined. Thus, it is difficult to sustain a completely
> theoretical view on why these clauses are either preferable or not,
> at least insofar as they impact the choice of venue. Whether it's
> there or not, you still don't know for sure what venue will be used,
> and so how can we prefer one way or the other on principle?
I'm not sure I understand your argument. Is it really that nothing is
certain, and so acting from ideals is certainly incorrect?
> To decide, then, we must fall back on practical issues, and I don't know
> if anyone at all on this list is qualified to report on that. Even if
> we get an answer to that somehow (and I have suggested that choice of
> venue may well be considered more favorable)
You've suggested that, but I haven't seen a coherent list of reasons.
Can you provide one in one place?
>, what does it mean for us?
> A mere practical difference in the litigation procedure does not
> make something free vs. non-free.
Sure it does. Such a difference can be used as a proxy to control
modification and distribution, thus making an apparently free license
non-free in application. Because of that possibility, and the fact
that they compel an agreement from the licensee, COV clauses are non-free.
>> We have explained repeatedly that choice of law clauses are great and fine,
>> while choice of venue clauses are abusive.
>
> Excuse me, but I am both a contributor to Debian and a heavy user. You
> are in no place to "explain" things to me.
I think you need to calm down at least as much as Nathanael. He's in
a great place to explain things to you -- that's why he's here, same
as the rest of us.
> Further, there is no "we",
> because other people agree with me. And finally, even if debian-legal
> were in full unanimity other than myself, I would still have a full
> right to speak up and enter the debate.
Well, yes, but you should probably expect to be told you're wrong in
that circumstance. A lot.
You have the right to an opinion. You don't have the right to smiling
nods of approval for publicly espousing a ridiculous opinion.
> I wish we did have a real process for deciding the DFSG-freeness of
> things, as opposed to loose consensus, because more and more I am seeing
> a lack of consensus on debian-legal. Barring that, you will just have
> to live with people who disagree with being in your presence.
I think it's a very good thing that there isn't a rigorous process
here. The error rate of debian-legal is well below the expected error
rate of a bureaucracy.
-Brian
--
Brian Sniffen bts@alum.mit.edu
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