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

[Sven Luther <sven.luther@wanadoo.fr>]

On Fri, Jul 23, 2004 at 04:33:04PM -0400, Michael Poole wrote:
> 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.

Ok.

> >> 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

I would not bet on that.

> live and work and do action X in Versailles, could someone sue you in
> Nice for doing X?

I don't think so, unless contract law overrides it. Which is the question at
hand 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?
> >
> > 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?

Because the people concerned are still free to use the software under rights
given by the licence. The suing stuff is a pathological case, which doesn't
come into account for speaking about the DFSG #5, at least that is my
interpretation. 

> 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.

And ? 

> > 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.

Well, what about asking them directly about our troubles right now and hearing
what they have to answer about them ? Did anyone here already try that ? 

Friendly,

Sven Luther