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Re: BitTorrent Open Source License (Proposed Changes)

On Sunday 31 July 2005 06:35 pm, Michael Poole wrote:
> 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.

Same with the petting an animal... everyone has to do it.  Did you know that 
pre-18 years olds CANNOT agree to a waiver of liability?  Seems waivers 
descriminate against them.

> 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.

Personal jurisdiction and rights to a jury trial are created by law...  where 
venue clause and trial by jury waivers apply, it is because the relevant law 
allows them to stand.

See, I can write similar sentences that are JUST as true.  Should we continue 
to dance, or will you accept my point?


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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