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Re: BitTorrent Open Source License (Proposed Changes)

On Saturday 30 July 2005 04:38 pm, Andrew Suffield wrote:
> On Sat, Jul 30, 2005 at 08:55:33AM -0700, Sean Kellogg wrote:
> > Hmm...  Personally, I'm not convinced that venue clauses are non-free. 
> > But if they are willing to drop a venue requirement, that's great for
> > users of Debian!  I'm surprised that folks on this list are comfortable
> > with such strong choice-of-law provisions.  Again, I don't believe such
> > clauses are non-free, but I believe I've heard the argument made before. 
> > (A license has got to be interpreted under laws somewhere...  might as
> > well establish the laws prior to the agreement instead of fighting it out
> > in court.)
> The issue isn't precisely the construct, but rather writing the
> license in such a way as to massively and unfairly benefit the license
> holder at the expense of the user - that's hardly in the spirit of a
> free license. The point of a free license, after all, is to *give*
> stuff away. Not to extract payment in some form. (To forestall the
> inevitable trolls: the GPL adds restrictions in order to directly
> further the cause of giving stuff away, not to benefit the licensor,
> except insofar as he benefits from the improvements to society as a
> whole).
> Choice of law provisions are thusly fine so long as they don't choose
> laws that strongly favour the license holder. Locations with properly
> functioning justice systems are generally okay. Crazy tinpot
> dictatorships probably aren't. Choice of venue clauses are a problem
> because being forced to travel halfway around the world to defend
> yourself against an entirely spurious claim is hardly reasonable, and
> so they are essentially a license to harass the user at whim. Like the
> pet-a-cat license, only worse.

Andrew, to be blunt, you don't know what you are talking about.  I can sue 
you, right now, right here in my home State of Washington for any spurious 
claim I so deem.  I don't need a choice of venue clause to do that.  Choice 
of venue has come into vogue because distributors, manufacturers, 
what-have-you, are shipping their goods internationally and require the 
ability to handle suits locally because its easier.  However, I am still free 
to sue that distributor in my own backyard.  Now, the distributor can try to 
have the case dismissed for lack of jurisdiction,but if you are distributing 
over the internet there really isn't a place on the planet where you don't 
have "substantial contacts."  The alternative is to try to have the case 
moved to a different venue (so called "venue shopping") but there is no real 
proof that venue shopping does much of anything (outside of the Norther 
District of Texas, reknowned for its quick work with patents).  But its 
already like that...  choice-of-venue clauses just keep people from playing 
the venue shopping game.

But I'm going to take offense to your claim in a wholey other matter, if you 
don't mind, and say what right does Debian-Legal have in deciding my legal 
decisions as a user?  The DFSG set out the kind of software that Debian is to 
distribute, it is not a tool for D-L to make my legal decisions.  If I want 
to have a choice-of-venue agreement with a software distributor, who is 
Debian to stand in my way?  Is Debian my mommy now, making sure I don't agree 
to something I shouldn't?

And the pet-the-cat-license is a really poor counter argument.  Like I said 
before, the suit is going to happen SOMEWHERE.  Stating that "somewhere" in 
the license reduces legal uncertainty...  which is a good thing.  Maybe, if 
law suits could be started in the ether such a requirement would be 
onerous...  but it can hardly be said to be onerous in a world where things 
must happen in physical space.  The suit has to be somewhere...  might as 
well be in Santa Cruz.

> As best I can tell, the choice of law clauses here are extremely
> right-wing but not actually favorable to either party.

What the fuck?!  I'm sorry, but this is the line that really ticked me off.  
Where the hell do you get off calling the U.S. Civ Pro rules "extremely 
right-wing"?  I mean...  honestly?

> > What's the concern here?  The GPL only requires that I provide a source
> > distribution method for three years (clause 3(b))
> We don't consider clauses 3b or 3c to be free. We require distribution
> under 3a to be possible, in which case the license is free (since the
> licensee can use 3a and therefore be exempt from the others). I
> believe this was actually an issue on one occasion, although I don't
> recall the details. (Obviously, the GPL doesn't require you provide
> source for three years).

Huh?  Debian has determined that clauses of the GPL are non-free?  That's 
outrageous.  Actually...  you're entire e-mail (including the other one) is 
just really infuriating.  Especially the line about complex licenses being 
done by a lawyer.  What exactly do you think I am?  I'm pretty sure my legal 
training gives me the expertice to comment on license language...  I sure 
paid an awful lot of money if it doesn't at least get me that.  I'll admit, I 
haven't taken the bar...  but since the bar doesn't cover Copyrights, I'm 
pretty sure I have all the formal training any other lawyer has.

Seriously man, where do you get off?

Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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