Re: Why is choice of venue non-free ?
Glenn Leslie McGrath writes:
> 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 ?
There are several arguments why choice of venue violates the DFSG.
The first, relatively weak (since it is not clearly based in the DFSG)
is that having to defend yourself in a foreign jurisdiction acts as an
improper fee or charge for using the software.
A stronger one is that it discriminates against persons who are not
naturally subject to the chosen jurisdiction, breaching DFSG#5.
In common law countries, enforceable choice of venue generally
requires a contract, and some believe that no license can be
DFSG-free if it contains provisions enforceable only by contract.
(Perhaps because contracts require that both sides give consideration,
and the DFSG generally is about the copyright owner giving to the user
rather than the other way around.)
- Choice-of-venue requiring a contract that may not be in fact
executed does not diminish the other arguments, since an end-user
defendant may still have to go to considerable expense and trouble to
have a foreign lawsuit thrown out.