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Re: BitTorrent Open Source License (Proposed Changes)

On Sunday 31 July 2005 12:13 am, Michael K. Edwards wrote:
> On 7/30/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> [snip]
> > ...  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.

The term "contract of adhesion" is one thrown around a lot.  Standard form, 
non-negotiable contracts, are not really "contracts of adhesion" in the sense 
of equities.  There needs to be power differential to be really considered 
adhesion.  BitTorrent giving their software away for free to people who don't 
NEED the software (in the way you NEED food) is not a power differential 
situation.  I suggest to you that most, if not all, software licenses that 
contain choice-of-venue clauses will be upheld.

> > 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.

I think that sounds lovely in theory...  however, I really have no sense of 
how the ftpmasters synthesis the debates that go on here.  What I do know is 
that this list spends a lot of time declaring licenses to be non-free based 
on dubious tests that are poorly grounded in the DFSG or legal thinking that 
would never fly in a court room.  The discussion on what constitutes 
discrimination under DFSG #1 continues to be so outside of mainstream legal 
thinking to be debilitating.  I was actually trying to describe the thinking 
to a legal prof who is pretty well respected among the software industry and 
he was amazed to hear that was considered a viable way of thinking of 

> > 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.

Agreed, choice-of-venue clauses are pretty stupid...  its just a matter of 
airfare :)

> > 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.

The problem is that when there are "potential areas of abuse" in other 
licenses people rush to declare it is non-free.  I believe that the GPL and 
the BSD represent the mainstream of free licenses.  If the position is that 
the GPL is the extreme to one side, then I fear for Debian and its ability to 
evolve as FOSS licensing thinking changes.  I'm willing to wager money that 
this list will declare GPL 3 to be non-free...  and I say that without even 
knowing what will be in the license.  The kneejerk reaction to apply super 
strict rules and "worse case scenario" prognosticating doesn't seem helpful.

> > Seriously man, where do you get off?
> Oh, the usual place, I expect.  People in the Southern Hemisphere
> aren't _that_ different from us.  :-)

There is a cultural problem here on d-l...  those with the most extreme views 
of the DFSG seem to have been attracted to this list as a place to force 
their views.  I'd much rather see honest legal debate based on common, 
mainstream values held by the FOSS community.  That includes REASONABLE 
readings of DFSG #1.  Clearly OSI, who has very similar terms, has adopted a 
reasonable interpretation and approved several license.  Why is Debian 
special to go the other way?

Maybe there is an opposition to license diversity, and I think on policy 
grounds there are lots of reason to oppose license diversity...  but its not 
a decision for D-L, its a decision for the developer, the maintainer, and the 
user who chooses to download the package.


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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