Re: MTL license
On September 13, 2004 11:28 pm, Anthony DeRobertis wrote:
> On Sep 13, 2004, at 09:13, Raul Miller wrote:
> > On Mon, Sep 13, 2004 at 02:49:01AM -0400, Glenn Maynard wrote:
> >> This is choice of venue; it means that, if the licensor wants, he can
> >> force me to trek out to Indiana at whim to defend myself in court,
> >> overriding the normal legal mechanisms for choosing a suitable venue.
> >> I believe most of d-legal considers this to be non-free; I agree.
> >
> > Of course, it also means that if Microsoft uses a derivative of this in
> > some proprietary component of Windows that the licensor can avoid
> > having
> > to trek out to Seattle to contest the issue.
>
> You can sue Microsoft in any state in the Union, and probably most
> countries in the world, without this clause, too. That's because
> Microsoft no doubt does business in your state or country.
This is probably tangential, but it may be noteworthy.
It depends in part on why you are suing them, in some jurisdictions anyway, it
seems. According to the interpretation of an MSN click-through ("I Agree")
EULA by Canadian courts in Rudder v. Microsoft Corp (1999), you are bound to
the aggrement stating that disputes may only be settled in King County in the
State of Washington. I believe in Caspi v. The Microsoft Network, L.L.C.
(1999) upheld the same clause in New Jersy.
These seem intrinsically tied to the licensing of some software with an
appropriate EULA. They may prevent you from suing the licensor cost
effectively or in a suitable court of law (think selecting countries who have
not ratified TRIPS/Berne/Paris conventions). Potentially, albeit in a twisted
way, this violates DFSG #5: discriminating against people who want to seek
legal remedies against licenseors, or DFSG #6: discriminating by preventing
legal remedies against the licensor in any jurisdiction but the one cited.
These seem somewhat ancillary to the actual purposes of the DFSG.
There is also the question of whether you can be sued by the licensor, and
having agreed to the license, requiring you to present your defense in
another jurisdiction. I strongly doubt this would be upheld, though you never
know, particularly if there are bi/multilateral treaties involved. It
violates some principles of extraterritoriality: the imposition of ones law
in a foreign jurisdiction. Nevertheless, treaties like TRIPS may make
extraterritorial judgment valid and enforceable, even in the absence of the
defending licensee or licensor.
Indeed, it is possible that a choice of venue may be cost, geographically, or
legalistically unfavourable and restrictive. But then, any dispute resolution
can be costly. The question is whether DFSG requires the freedom to choose a
venue? Or perhaps more succinctly, whether or not the cost of legally
enforceable dispute resolution is a suitable restriction on DFSG to prevent a
license from reflecting "free software".
Best,
Brian
Reply to: