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

On Thu, Jan 26, 2006 at 01:21:10AM -0500, Glenn Maynard wrote:
Glenn> There are laws in place for determining the *appropriate* venue.  If
Glenn> California really is the appropriate venue for the suit, as determined
Glenn> by the law, then that's fine.  If the appropriate venue is Massachusetts,
Glenn> or somewhere else, then that's where it should be.  

Well then I fail to see the difference. I do not, as a rule, consider
criteria determined by the law as better than criteria determined by
the parties (or one of them). What's more, many national rules on
choice of venue are of the form "where the parties have remained
silent on the question, the appropriate venue shall be FOO". So you
can really say that contractual choices of venue are determined by the
law. I guess they should suddenly become acceptable since you seem to
consider that the law is always ok.

More fundamentally, I fail to see how this discriminates against
anybody. In every conceivable case, the law will determine one venue,
and this one shall be detrimental to someone. Not because the law or
the license is discriminating, but because geography is. This kind of
clause doesn't change that fact in any way.

In fact, many lawyers (me included) consider that in general, choice
of venue clauses are good practice because they heighten the degree of
predictability of the venue issue, which can be a real pain in the
... Now I agree that they feel uncomfortable in software licenses. But
that doesn't necessarily make them non-free. Any lawsuit is
uncomfortable, for a number of reasons, and that of the venue is
*always* one of those reasons. This clause doesn't alter this fact for
better or for worse.

Glenn> Choice of venue attempts to override this mechanism, to always favor the
Glenn>copyright holder.

Non-warranty clauses also override legal mechanisms to favor the
copyright holder. So what? They don't impede the use you can make of
the software. But they are uncomfortable, because should damage arise
following use of the software, the user won't be indemnified. In these
cases, non-warranty clauses undisputably harm users, likely more so
than choice of venue clauses. Yet we (rightly) don't consider them
non-free. The same reasoning should be applied to choice of venue


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