Re: Choice of venue, was: GUADEC report

[lex@cc.gatech.edu]

Jim Marhaus <marhaus@sdf.lonestar.org> wrote:
> Lex Spoon wrote:
>  
> > Why do you think *real* lawyers seem to be okay with such clauses?
> 
> Sometimes parties in a uniformly constructed contract agree to a particular
> venue, perhaps because both are qualified to practice law there. In a free
> software license or commercial EULA however, the licensee is not at liberty to
> negotiate, so the venue clause is wholly to the advantage of the licensor. 

First, you are discussing the wrong question.  We should be talking
about whether the clause is acceptible or beneficial, not which
party gets the greater benefit.  Second, your two claims are
inconsistent.  The two parties in each claim might be the same, and the
agreement might be the same, and yet you say in one that it is okay and
in the other that it *must* be more advantageous to one of the parties.

That aside, you have not mentioned the advantages that the non-drafter
receives from a choice of forum clause.  A mid-stream user of the
software, who both receives the software and passes it on, will get the
same benefits that the originator of the software is getting.  Thus if
there is a benefit to the originator, there is clearly a benefit as well
for mid-stream distributors.  More importantly, though, end users
benefit from "knowing" the location a trial will be held.  The very same
law can have different practical import depending on where it is tried. 
Just as it is good to know which laws apply to an agreement, it is good
to know what kind of trial will be used to interpret those laws.

To generalize, it is good for all involved parties to know with greater
certainty what the exact agreement is.  Both choice of forum and choice
of law give exactly this benefit.



> "The Draft's choice of forum provision is way out of balance; it
> is all the more so when the assent provisions of the Draft form the
> basis for the non-drafter's agreement to it."
> 
> http://www.ali.org/ali/Woodward2.htm
> 

On the other hand, plenty of legal theorists agree with my interpretation.
Let me give you a sampling.


Here is one interesting comment that sums up the situation:

"But doesn't this really mean that the licensor can force me to go sue
in any place it wants, like China or Iran? That wouldn't be fair.  No,
it wouldn't.  Courts under a rule like the rule in UCITA have been more
than capable of invalidating those agreements that are designed simply
to prevent someone from suing and that have no reason or commercial
basis.4 They will continue to do so under UCITA. If a party has no
reason to select a particular jurisdiction and the effect of its
selection is unjust, then the selection is invalid. "
	--http://www.webcom.com/legaled/UCITA/docs/q&apmx.html#CFL3
	

Here is another fellow lauding choice of forum clauses for
consumers, due to the peace of mind they give:

"The rich diversity of sources for products and services available on
the Internet, the absence of sales pressures, and the opportunity for
Internet consumers to have far better access to third-party information
about vendors than they possibly could in the physical world, all make
it less likely that ecommerce contracts will be inherently unfair or
unconscionable. Accordingly, choice of law and forum clauses in online
adhesion contracts provide a potentially important source of increased
certainty regarding conflicts of law issues."
	--http://www.kentlaw.edu/cyberlaw/docs/drafts/crawford.html


Here's an interesting comment that criticises a treaty for *loosening*
choice of venue:

"Intellectual property laws are not consistent internationally, however.
Critics say the Hague treaty would allow the owners of intellectual
property to forum-shop for the most restrictive intellectual property
laws and trample on "fair use" and other public rights established in
countries like the United States."

	--http://www.freedom-of-speech.net/hagueconvention.htm
	

And finally, here is a quote saying that choice of venue terms will not
be upheld, in many reasonable jurisdictions, if it is viewed as an attempt
to make things overly inconvenient for the defendent:

"Generally, a choice of forum or venue clause will be upheld unless the
court concludes that the result would be unreasonable or unjust under
the circumstances. A court will decline to enforce such a clause only if
it fits into one of three exceptions to the general rule: (1) the clause
is a result of fraud or "overweening" bargaining power; (2) enforcement
would violate the strong public policy of the state; or (3) enforcement
would seriously inconvenience trial."
	
	--http://www.irinfo.org/Articles/article_3_2003_incollingo.pdf
	

Overall, choice of law and venue seem not only like good things to have
in a contract, but helpful for the people on debian-legal in evaluating
what, exactly, a license is stating.  If we are going to spend time
analyzing this kind of boilerplate at all, then it actually seems we
should *encourage* licenses to include them.

But I would prefer that we stay away from these minutia.  Most
users don't care.  The few users who do need every little thing covered,
are certainly not going to rely on the judgement of debian-legal; such
users need to review the licenses themselves.


-Lex