Re: ocaml, QPL and the DFSG: Choice of venue argumentation.

[mdpoole@troilus.org]

Sven Luther writes:

>> Unless I live or do business where you or SCO are (or some court wants
>> to look silly in front of the world) you and SCO would have to file
>> suit where I am.  You could not sue me in France, and SCO could not
>> sue me in Utah.  The license is non-free when it compels me to appear
>> before a court that would not otherwise have jurisdiction over me.
>
> Ok, this seems indeed similar to what i was told. Now, what would be the
> legality of that claim in the licence ?

I think that such a clause would be binding in the USA.  Courts have
held that choice of venue clauses in "click-through" agreements are
binding (Groff v America Online in RI Superior Court, 1998), so I
suspect a copyright-based license clause would also be binding.

A good lawyer might find some loophole, but I think courts would
presume the clause is valid until it is contested.  Such a challenge
would likely fail -- even for users -- in states (like Virginia, where
I live) that have adopted UCITA, the Uniform Computer Information
Transactions Act, since UCITA explicitly allows such clauses.

> And as said above, what about folk wanting to sue the ocaml authors based on
> the licence ? 

I am not sure what in the license would give rise to a cause for
action against the authors: it grants others more rights than they
normally have, although some are conditional on certain performance by
the licensee.  The authors make no warranty or promise in the license.

Regardless, the normal rules for venue would apply: among other rules
for venue, a plaintiff could only file suit in a court with personal
jurisdiction over the defendant(s).  Assuming that the Ocaml authors
live and work exclusively near Versailles, it would be the court
there.  Just like SCO cannot sue me in Utah, SCO would have to do
business here in Virginia for me to sue them here.

The freeness issue comes down to this: Courts normally give the
benefit of venue to the defendant.  Why should a free software license
change that?

Michael Poole