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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit md@Linux.IT (Marco d'Itri)

> So finally we are up to the good old "every restriction is a
> discrimination" argument. Even if in the last two years it has become
> popular among some debian-legal@ contributors while the rest of the
> project was not looking, I believe that it is based on a
> misunderstanding of the meaning of DFSG #5.

For what it's worth, I do not believe that DFSG #5 is a sensible
reason to consider choice-of-venue clauses non-free. The sensible
reason to consider choice-of-venue clauses non-free is the following
general principle:

   A license can only be free if one can always "accept" the license
   without losing any right that one had before one received the

(Those who think that licenses are not contracts and do not need to be
accepted, feel free to substitue "use the rights granted" instead of

This is, in my opinion, the natural and direct extension of the
explicit language that a license cannot require "royalties or other
fees" to be paid in exchange for the rights described in the
DFSG. Plain and simple, if it requires that you give up *anything*
that you already had before, then it's not free.

A choice-of-venue clause is a demand that I give up my right to have
the specified foreign court automatically throw out a nuisance suit
citing lack on the grounds of personal jurisidiction. Without the
license I have this right; with it I don't.

To try to shoehorn such a fundamental principle into the much more
specific DSFG#5 just to please some literal-minded apologists who want
the DFSG to be an objective ruleset rather than a set of guidelines,
is just silly.

Henning Makholm             "The Central Intelligence Agency is committed to
                        protecting your privacy and will collect no personal
 information about you unless you choose to provide that information to us."

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