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

[Michael Poole <mdpoole@troilus.org>]

Sven Luther writes:

> On Fri, Jul 23, 2004 at 01:04:43PM -0400, mdpoole@troilus.org wrote:
>> > 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.
>
> See my other response about this. Still what would give the upstream author
> cause to sue an honest user in the first place ? Your argument cuts both way.

The example in your other response would not arise under breach of the
license, since the license is from upstream to the modifier.  The
lawsuit against upstream would be simple copyright infringement.  The
license would provide an affirmative defense against that claim if the
QPL'ed version of the code included the changes.

I made no argument to cut both ways; I just answered part of your
question as to what would happen if someone wanted to sue the upstream
authors based on the license.

You are the one who wants to expose arbitrary Debian users to lawsuits
in a particular place.  I just want to preserve the rights they
already have.

>> 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.
>
> Ok, but this is US law, isn't it ? 

I *hope* that most courts have similar rules on jurisdiction.  If you
live and work and do action X in Versailles, could someone sue you in
Nice for doing X?

(I'm not interested in contrived examples that would in themselves
submit you to the jurisdiction of the court in Nice; I'm interested in
examples that are reasonable parallels to free software development.)

>> 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?
>
> I will ask the upstream author this, and see what they have to say about this.
> But still, there is nothing in the DFSG which explicitly forbids it, so if you
> want to declare the QPL non-free based on this, we would need an DFSG change.

Choice of venue clauses take away a right normally accorded to people
outside that venue.  Would you explain why that is not discrimination
against those people under DFSG#5?

Since the introduction to the QPL says it covers "use of third-party
application programs based on the Software, and development of free
software which uses the Software," Debian would be obliged to inform
users (not just those who modify or distribute the code) that they
could be sued in France.

> BTW, i wonder if it would make sense to contact trolltech's juridical
> department or whatever over these issues ? After all they did the legal work
> of it, and if we are able to get them to do a clarified QPL 1.1 or something,
> then it would be rather easy to get all those QPL software out there to
> migrate to it. 

That would make sense, as long as we (debian-legal) can agree on what
is problematic, and hopefully offer specific suggestions on what would
make the license (clearly) DFSG-free.

Michael Poole