Re: BitTorrent Open Source License (Proposed Changes)
Sean Kellogg writes:
> On Sunday 31 July 2005 06:45 am, Michael Poole wrote:
>> In contrast to choice of law, choice of venue requires users who are
>> not normally subject to that court's personal jurisdiction to give up
>> a right they normally have to use the software. Take your pick
>> whether that is discrimination or a fee or something else, but waiver
>> of pre-existing rights is a clear violation of the spirit of the DFSG.
> How is that descrimination or a fee? Someone earlier mentioned that right to
> a jury trial is protected by the DFSG?! Seriously people, we are talking
> about software here. I personally subscribe to the four freedoms staked out
> by FSF. I understand that Debian has extended those freedoms in certain
> areas with the DFSG, and in ways that I agree make sense, but reading in
> rights to a jury trial or a right to have only personal jurisdiction within
> the state/country of residence is just not one of them.
Waiving normal personal jurisdiction is a lot more costly than the
proverbial (and still forbidden) "pet a cat/dog" license -- yet there
is nothing in the DFSG that directly addresses petting an animal.
> But, if I grant your point, and accept that the DFSG protects my right to all
> those things, why doesn't it invalidate licenses that waive liability to the
> distributor? Isn't that my inaliable right... a fee I must pay in order to
> use the software... aren't I being descriminated against to the benefit of
> the developer and distributor. Its an outrage, its unexusable... but it is
> the way it is, and I fail to see a distinction between libability waivers,
> venue clauses, or rights to jury trials.
It is not discrimination: every user is treated identically.
It is not a fee: implicit warranty and similar liabilities are created
by law. Where a warranty disclaimer applies, it is because the
relevant law allows that warranty to be disclaimed.