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Re: Adobe open source license -- is this licence free?

Raul Miller writes:

> On 1/25/06, Francesco Poli <frx@firenze.linux.it> wrote:
> > > Any dispute  arising out of or
> > > related to this Agreement shall be brought in the courts of  Santa
> > > Clara County, California, USA.
> >
> > This is a choice of venue and is considered non-free by many
> > debian-legal contributors (including me...).
> And some of us think it's reasonable.
> If Adobe is going to take legal action against someone else,
> they'll have to deal with the jurisdiction(s) where this someone
> else has a presence.

Why do you say that?  In The Bremen v. Zapata Offshore Co. (407 U.S. 1
(1972)), the US Supreme Court held "that such [forum-selection]
clauses are prima facie valid."  In Carnival Cruise Lines,
Inc. v. Shute (499 U.S. 585 (1991)), the Court explicitly extended
this from negotiated contracts to include standard form contracts.

Other countries have quite different rules for venue and jurisdiction.
Unlike copyright, there are few international treaties on the subject.
In the absence of information as to the effects in many places, it is
somewhat hazardous to endorse licenses that set those rules aside.

In terms of software freedoms, clauses not clearly related to software
freedom are encumbrances that can easily turn into lawyerbombs.
Question 12's subequestions h and p at [1] are particularly relevant.

[1]- http://people.debian.org/~bap/dfsg-faq.html

> There's some benefit to Adobe if that jurisdiction is willing to turn
> control of the case to the california courts, but that doesn't seem
> to have any direct relevance on software freedom.  It's not like
> there are all that many things for Adobe to be taking action
> against someone else on here.

Adobe has attempted (with some success) to use copyright law --
especially the criminal portions of the DMCA -- to harass and hamper
those who take advantage of weak copy protections in Adobe software.
If Adobe's software had been open source, they would have even more
basis for pursuing such claims, since Adobe could (perhaps reasonably)
allege that prospective defendants had exercised license-controlled
copy rights relating to Adobe's software, and that those actions
subject the defendant to Adobe's preferred venue.

(I specify Adobe because you did, but most large companies have taken
or could conceivably take similar action.  Think Tentacles of Evil.)

> The big deal here is that if someone sues Adobe, Adobe
> doesn't have to incur huge legal fees defending themselves.
> Since it's free software, why would they want to?
> Choice of venue, to me, means "we're giving this away, and
> we don't want to have to pay big legal fees because of that."

If a licensor want to avoid that, they should instead specify that
suits naming the author(s) or licensor(s) as defendants must be filed
in that venue, rather than specifying that all suits pertaining to the
software must be filed in the venue.

> No one has ever demonstrated any mechanism where choice
> of venue could prevent porting, security patches, enhancements
> or other such things.  At least, not that I'm aware of.

I suspect that, to precisely the same extent, no one has ever
demonstrated mechanisms where sending a postcard, petting a cat,
identifying yourself or publishing modifications to third parties
could prevent those things, either.

Michael Poole

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