[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: Why is choice of venue non-free ?

On Fri, Feb 04, 2005 at 10:39:12AM +1100, Glenn Leslie McGrath wrote:
> Often on this list it has been stated that "Choice of venue" makes a
> license non-free, why is it so ?

> Is it because it undermines the legal strength of the license itself, or
> because it somehow conflicts with the DFSG, or some other reason ?

The problem with choice of venue clauses is that anyone who accepts the
license must also accept the burden of defending themselves against charges
of license violation in a court which is likely to have an implicit bias in
favor of the copyright holder: first because courts will often favor, or can
often be manipulated to favor, a party to the suit who is local to them; and
second because the cost of litigation is frequently unequal when one party
is geographically much closer than the other.

While it's true that in any lawsuit a venue must eventually be chosen which
may strongly favor one party over the other, by default parties to a suit
have the right to litigate for the choice of venue.  This can be
particularly important if at some point the copyright to a piece of software
ends up in the hands of a hostile party; consider the case of the MPAA
trying to sue 1,000 DeCSS redistributors in their own home court in
California, and what the consequences could be if $large_corporation tried to
sue all of Debian's mirror operators under a choice of venue clause.  The
damage could be significant *even if the copyright holder had no valid claim
against us*, because a choice of venue clause would keep their own legal
fees much lower than if venue had to be negotiated in the case against each

For this reason, Debian should reject choice of venue clauses as non-free.
At best, they give an underdog copyright holder a small advantage while
enforcing his rights, but at worst they give a hostile copyright holder a
large advantage while persecuting the Free Software community.

Steve Langasek
postmodern programmer

Attachment: signature.asc
Description: Digital signature

Reply to: