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Re: BitTorrent Open Source License (Proposed Changes)



On Sun, 31 Jul 2005 18:06:54 +0000 (UTC) Michael Janssen wrote:

> Francesco Poli <frx <at> winstonsmith.info> writes:
>  
> > I've just re-read the relevant threads, and I do not agree that the
> > two above mentioned clauses are the only issues.
> [...]
> > Consequently, the issues to be solved are, at least,
> >  . one in clause 4b
> >  . one in 4c 
> >  . _two_ in 13
> 
> Okay, I have reworked the language again in order to handle these
> three issues instead of the two.

That seems to be an improvement, but...

[...]
> MODIFIED Clause 4b-c:
[...]
> c.       Intellectual Property Matters.  
> 
>                                 i.            Third Party Claims.  If
>                                 you have
> knowledge that a license to a third party's intellectual property
> right is required to exercise the rights granted by this License, you
> must include a text file with the Source Code distribution clearly
> identifiable that describes the claim and the party making the claim
> in sufficient detail that a recipient will know whom to contact.  If
> you obtain such knowledge after you make any Modifications available
> as described in Section 4(b), you shall promptly modify the notice
> file in all copies you make available thereafter and shall take other
> steps (such as notifying appropriate mailing lists or newsgroups)
> reasonably calculated to inform those who received the Licensed
> Product from you that new knowledge has been obtained.

This seems to be still a lawyerbomb.
The necessity to notify afterwards looks like a fee to me.

Imagine that I distribute some Modifications, then stop distributing
them because I got bored, changed job, found something more exciting to
do (do *not* ask me what!), ...
It seems that I'm forever bound to promptly inform those who received
the Licensed Product from me of *any* new knowledge I may later learn
about legal obstacles w.r.t. the Licensed Product.
% That's easy! Use the same channel you used to distribute (say, the
% website from which people used to download the Modifications)!
What if the channel is out of service?
Am I compelled to keep the channel alive *forever*?
% That's easy! Use another channel!
How can I know who received the Modifications from the old channel (say,
my website)?
Am I compelled to keep the web server logs *forever*? That's a
nightmare!

[...]
> MODIFIED Clause 13:
[...]
> You expressly agree that any litigation
> relating to this license shall be subject to the jurisdiction of the
> Federal Courts of the Northern District of California or the Superior
> Court of the County of Santa Clara, California (as appropriate), with 
> the losing party responsible for costs including, without limitation,
> court costs and reasonable attorneys fees and expenses.

Is cutting the part that says "with venue lying in Santa Clara County,
California" sufficient to nuke the choice of venue?
I'm not so knowledgeable about this phrasing: someone please tell me
whether this being "subject to the jurisdiction" is still a choice of
venue or something else...

> The
> application of the United Nations Convention on Contracts for the
> International Sale of Goods is expressly excluded.  Any law or
> regulation that provides that the language of a contract shall be
> construed against the drafter shall not apply to this License.

We discussed about them before, but are we convinced that these are
really legal no-ops?
I would be surprised, should I find out that they are valid clauses[1],
but who knows...
If they are indeed enforceable, it seems that they take away some of my
previous rights...


[1] this license would have the Power-To-Nuke-Laws(TM): wow!


P.S.:
Where did the idea to persuade upstream to dual license under the GPL
go? This good suggestion was made by Josh Triplett in Message-id:
<422F39E1.3090706@verizon.net>


-- 
    :-(   This Universe is buggy! Where's the Creator's BTS?   ;-)
......................................................................
  Francesco Poli                             GnuPG Key ID = DD6DFCF4
 Key fingerprint = C979 F34B 27CE 5CD8 DC12  31B5 78F4 279B DD6D FCF4

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