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

Yorick Cool writes:

> 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".

Can you elaborate on FOO?  At least in the US, a suitable forum is one
that has personal jurisdiction over the defendant and subject matter
jurisdiction over the claims.  For copyright claims, that would be a
federal circuit court where the defendant resides or has significant
contacts (or where the alleged infringement occured, which is likely
to be one of the above).

> 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.

Nonsense.  The law allows me to charge someone $50 for the right to
copy my software.  That does not make a required $50 fee DFSG-free.

> 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.

The law will determine at least one venue for each suit, and that will
vary by defendant and the particulars alleged in the suit.  Setting
venue by license discriminates against every defendant who is not
normally subject to that venue, since it changes the rules for them in
a potentially very costly 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
> ...

In general, charging money as part of a contract is good practice
because common law contracts require a consideration to be
enforceable, and money is an obvious form of consideration.  That does
not make it a good practice in free software.

> 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.

Choice of venue alters the burden to the better for the licensor and
the worse for most people in the world, since it allows a lawsuit
against them to be brought in a foreign jurisdiction.

> 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
> clauses.

I claim that implied warranty also implies a purchase as the context
for that warranty.  It is foolish to expect that free software comes
with a costly obligation on the part of Debian (or anyone else) to
ensure it is fit for whatever purpose the user claims.  Exposing
authors or distributors to that kind of liability would severely
hamper free software.  As can be seen, default venue has not done so.

Michael Poole

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