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

Raul Miller writes:

> On 25 Jan 2006 20:48:29 -0500, Michael Poole <mdpoole@troilus.org> wrote:
> > Raul Miller writes:
> > > 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?
> You pretty much answered your question:

I cited US Supreme Court cases that held forum-selection clauses were
valid, both against the author and acceptor of contracts, for both
negotiated and standard form contracts.  How does it follow that Adobe
would have to pursue significant legal action in the defendant's
jurisdiction?  It is not easy to set aside a default judgment.

> > Other countries have quite different rules for venue and jurisdiction.
> > Unlike copyright, there are few international treaties on the subject.
> ...
> > Question 12's subequestions h and p at [1] are particularly relevant.
> >
> > [1]- http://people.debian.org/~bap/dfsg-faq.html
> This isn't a "you must".  No one is requiring that you sue Adobe,
> and suing Adobe isn't a normal part of anyone's use or development
> cycle.  Nor is there anything significant here for Adobe to sue you
> about.

"You must submit to this court's decisions" sure seems like a "you
must" to me.  Would a waiver of jury trial or consent to binding
arbitration through the licensor's cousin Bob be free restrictions?

> > 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.
>   DMCA is not relevant here.

Why not?  It is a copyright law, and the traditional software freedoms
have been about copyrights.

> > 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.
> We're talking about technological measures which enforce license
> provisions.  If the license says anyone can freely own, modify and
> redistribute a copy of the software, what problem do we have with
> technology which enforces those license provisions?

Legal measures like forum selection clauses are not technological
measures.  Which technological measures are you talking about?

> If there was some technological measures which conflicted with
> the copyright that would be a different story -- and it still wouldn't
> be a DMCA issue.

The DMCA included many more changes to the law than the "effective
control to copyrighted material" clauses that get so much attention.
It revised a rather large part of the Copyright Act.

> > > 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.
> As it happens, it says that all suits pertaining to the license must be
> filed in the venue.
> Legal actions about the software which don't have anything
> do do with the license (perhaps: "that adobe stole the software
> from SCO") aren't constrained by this clause.

This is a very different limitation than what I said.  Suits
pertaining to the license include suits that allege you or I or the
Pope infringed the work's license or copyright.

> > > 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.
> You seem to be referring to clauses that restricted modification
> (with the exception of "petting the cat", which I've never seen in
> any license).  The choice of venue clause we are talking about
> here does not restrict modification.

How does sending a postcard restrict modification?  Clearly it is not
a direct restriction; instead, it is an additional cost, but the DFSG
do not address costs to modify the software.  How does identifying
yourself restrict modification?  Again, it is not direct, but it can
easily have a chilling effect, but the DFSG do not address chilling
effects.  Forum selection can have a chilling effect, and can be
leveraged to an additional cost at the whim of a copyright owner.

Michael Poole

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