Re: Choice of venue, was: GUADEC report
lex@cc.gatech.edu writes:
> 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.
The originator's benefit from the recently-discussed QPL license venue
clause is that it is their local court. How is that a benefit for any
Debian mirror operator?
> 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.
It is also good to know that you will not be compelled to appear
before a court on the far side of the country or world to defend
yourself because of software that you use. Given a choice between the
two, I would prefer to leave venue in its legal default state, rather
than impose venue on users.
> 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
Curiously, the case cited in their footnote 4 only had a choice of law
clause on its face; the choice of venue clause was in "small print on
the back page" -- which was a major factor in throwing it out.
Software licenses tend to not have small print.
> 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
You skipped a rather important condition on that page:
"The choice of law and forum contractually selected by a consumer with
a vendor should be deferred to under certain circumstances: ... (2)
the chosen forum provides both parties with a reasonably accessible
neutral forum for adjudicating disputes."
> 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
As I mentioned elsewhere, those guidelines have been cited frequently
in cases that *upheld* choice of venue clauses in online licenses and
agreements. How many cases have actually rejected them?
> 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.
We've already seen one SCO try to undermine free software. How many
more examples do you need to decide that giving licensors more power
over users is risky?
Michael Poole
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