Re: ocaml, QPL and the DFSG: Choice of venue argumentation.
lex@cc.gatech.edu writes:
>> 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.
>>
>
> I did a little web searching on this, and it seems that many courts do
> reject choice of venue clauses if they are clearly abusive. Here's a
> clear statement of it:
>
>
> "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
>
> The details, of course, would depend on the venue...
For reference, those guidelines come from an oft-cited New Jersey
case[1] that *upheld* a forum selection clause in an MSN click-through
agreement, and the appeals court there remarked those rules are
similar to US Federal Court guidelines.
Which of those would apply to a trial over free software copyright
infringement? #1 didn't apply in either of click-through cases. The
other two are so vague that I would not want to rely on them to save
me from a choice-of-venue clause. At least one holding[2] reads #2 to
mean that the public policy interests would have to be exclusive to
one forum to favor it for venue.
1- http://www.kentlaw.edu/legalaspects/digital_signatures/Contracting/readings/caspi.htm
2- http://www.paed.uscourts.gov/documents/opinions/01D0290P.pdf
Michael Poole
Reply to: