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Re: Why is choice of venue non-free ?

Glenn L McGrath writes:

> On 03 Feb 2005 08:28:36 -0500
> Michael Poole <mdpoole@troilus.org> wrote:
> > 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.
> Its just as unfair to make it harder for open source copyright holders
> to enforce their copyrights.

The DFSG doesn't mention that as any sort of criteria.  Should it?

> > A stronger one is that it discriminates against persons who are not
> > naturally subject to the chosen jurisdiction, breaching DFSG#5.
> hmm, so if parts of the license arent enforcable in the licencees
> jurisdiction, then a "choice of venue" clause could be used to drag
> people into a jurisdiction that they are enforcable...

Yes, "choice of venue" clauses could drag someone into a jurisdiction
that he perceives as oppressive.  European individuals often think US
copyright and patent laws are overbearing.  US corporations often
think European copyright and patent laws are too weak.  Non-Muslims
could be very disadvantaged if a COV clause subjects them to shari'a
law.  I could continue; is that sufficient illustration?

> > In common law countries, enforceable choice of venue generally
> > requires a contract[1], 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.)
> Interesting... but isnt this more a point that a "choice of venue" clause
> may be irrelevent in some jurisdictions, in which case it shouldnt effect
> wether its DFSG free or not.

It may be irrelevant or inapplicable in some jurisdictions, but if it
is relevant in any jurisdiction that Debian cares about, it is a DFSG
issue.  Unlike local laws that limit DFSG freedoms, choice of venue
clauses are chosen by (and benefit) the copyright holder.

Michael Poole

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