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Re: BitTorrent Open Source License (Proposed Changes)

On 7/30/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> ...  choice-of-venue clauses just keep people from playing
> the venue shopping game.

Is there actually anywhere in the world that a choice-of-venue clause
in a contract of adhesion is worth the paper it isn't written on?  I
wouldn't think much of a court that let a shrink-wrap license dictate
"forum non conveniens" without proper regard for the equities, unless
there is real evidence that the offeree intended to be bound by it.

> 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?

Oddly enough, I'm going to stand up for Andrew on this one.  Where
Debian has some sway over upstream's terms of offer, it makes sense to
discourage both DFSG-dubious and unwise-whether-free-or-not drafting
choices.  While the litmus tests that seem to be current among
debian-legal denizens are not necessarily the tests that I would
apply, I think they generally represent a sincere effort to act as
good stewards of the software commons.  I think that all debian-legal
readers should feel free to raise their concerns about the burdens
that a given license might place on one party or another, and I trust
the ftpmasters and maintainers to make reasonable decisions once the
dust settles.

> 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.

Now that would be convenient for me.  :-)  But I think the original
said Santa Clara County, which is over the hill.  Personally, I never
write choice of venue into contracts (yes, though I am not a lawyer I
have drafted contracts involving fairly large amounts of money), only
choice of law (State of California, which I trust courts elsewhere in
the US to be competent to interpret).  That's specific enough for both
sides to understand the ground rules, without tempting either to
exploit localized anomalies in case law.

> 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?

Relax.  Laugh.  Relish the thought that you understand just how
comical it is for an Australian to refer to the Ninth Circuit and the
People's Republic of the Bay Area as "extremely right-wing".

> 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.

Andrew's got reasonable points here.  AIUI the GPL is basically the
outer limit of the DFSG in one direction (the TeX license being the
outer limit in the other), and the GPL's requirements would indeed by
a significant inconvenience in this modern age without the combination
of 3a and the "equivalent access to copy" paragraph.  And while I
think we are all qualified to comment, and I don't always follow my
lawyer's advice on questions of contract language, I do not change
contract terms lightly once they have received a trusted attorney's
scrutiny and approval.

> Seriously man, where do you get off?

Oh, the usual place, I expect.  People in the Southern Hemisphere
aren't _that_ different from us.  :-)

- Michael

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