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

On Mon, Sep 12, 2005 at 11:56:34AM -0300, Humberto Massa Guimarães wrote:
> ** David Nusinow ::
> > If someone is going to file a lawsuit, someone has to pay for it.
> > If the two sides live in different places, one of them has to
> > travel no matter what, and thus pay for that expense. If we say
> > that choice of venue clauses aren't Free, then the person bringing
> > the suit will very likely have to travel and pay the fee (or
> > that's my interpretation of Humberto and Michael Poole's
> > responses). If not, then the person defending the suit will have
> > to pay the fee. Either way, there is a cost involved. Why are we
> > choosing sides if such a cost can't be avoided?
> Because:
> 1. it's greater the probability that the licensee is poorer than the
> licensor;

I fully disagree with this. If a large corporation takes Free software
written by an individual, this will not be the case. We've seen such cases
in the Free Software world before.

> 2. the definition of "user" (as in "we care about our users") fits
> the licensee better than the licensor -- even if it also fits the
> licensor; and, finally

This is true, but I don't feel that it's enough to create a bias towards
the licensee.

> 3. in the case of a fork (fork == GOOD(TM)) people can end up with a
> license that make BOTH the licensee and the licensor pay some
> (possibly hefty) cost to litigate the terms of the license.
> Example of #3 above: I start a (small) companya that distributes a
> fork of Mozilla -- under MPL1.1 -- , with a lot of improvements.
> Someone in Argentina forks my fork, and disobeys some of MPL's
> rules.  Now, to prosecute that someone, I have to travel to
> California -- because I also agreed to the venue of the MPL 1.1.
> Worse yet, someone in my home town could be the culprit, and I would
> still have to go California to prosecute him... probably.
> This does not seem Free Software to me.

This is a good argument, but ultimately it strikes me as negligable. If
someone in Argentina forks my fork I'd have to travel to Argentina to
prosecute them for it. This is a significant burden on me, and thus it
wouldn't make a huge difference if I had to travel to California instead.
In this case, both sides of the suit would actually be on equal footing, as
neither would be on their home turf.

Furthermore, the choice of venue clauses don't impose any sort of cost on
the freedoms we expect from software. They do impose a potential cost on
litigation related to that software, but the DFSG shouldn't be used as a
weapon to change the legal system. It should be used to protect and
guarantee that we have certain freedoms in relation to using, modifying,
and distributing software. Choice of venue clauses don't change these

 - David Nusinow

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