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

On Thu, Jan 26, 2006 at 08:26:52AM -0500, Michael Poole wrote:
Michael> Yorick Cool writes:
Michael> > On Thu, Jan 26, 2006 at 01:21:10AM -0500, Glenn Maynard wrote:
Michael> > Glenn> There are laws in place for determining the *appropriate* venue.  If
Michael> > Glenn> California really is the appropriate venue for the suit, as determined
Michael> > Glenn> by the law, then that's fine.  If the appropriate venue is Massachusetts,
Michael> > Glenn> or somewhere else, then that's where it should be.  
Michael> > 
Michael> > Well then I fail to see the difference. I do not, as a rule, consider
Michael> > criteria determined by the law as better than criteria determined by
Michael> > the parties (or one of them). What's more, many national rules on
Michael> > choice of venue are of the form "where the parties have remained
Michael> > silent on the question, the appropriate venue shall be FOO".
Michael> Can you elaborate on FOO?  At least in the US, a suitable forum is one
Michael> that has personal jurisdiction over the defendant and subject matter
Michael> jurisdiction over the claims.

You have very well elaborated on FOO, it is good example. That means
that if a US licensor established in New York licenses software to
me without specifying anything as to venue, then I shall potentially
be attracted to New York in case of litigation. How is that different
or better for me than if there was a choice  of venue clause? Yet in
one case it is free and the in the other it is? I don't understand why.

Michael> > So you
Michael> > can really say that contractual choices of venue are determined by the
Michael> > law. I guess they should suddenly become acceptable since you seem to
Michael> > consider that the law is always ok.
Michael> Nonsense.  The law allows me to charge someone $50 for the right to
Michael> copy my software.  That does not make a required $50 fee
Michael> DFSG-free.

Of course it's nonsense, but it's the logical conclusion to the
reasoning according to which letting the law decide is very much
better than a contractual choice of venue. I'm not the one defending
that point of view. 

Michael> > More fundamentally, I fail to see how this discriminates against
Michael> > anybody. In every conceivable case, the law will determine one venue,
Michael> > and this one shall be detrimental to someone. Not because the law or
Michael> > the license is discriminating, but because geography is. This kind of
Michael> > clause doesn't change that fact in any way.
Michael> The law will determine at least one venue for each suit, and that will
Michael> vary by defendant and the particulars alleged in the suit.  Setting
Michael> venue by license discriminates against every defendant who is not
Michael> normally subject to that venue, since it changes the rules for them in
Michael> a potentially very costly way.

And for others it might change the rules in a non-costly way or not at

Michael> > In fact, many lawyers (me included) consider that in general, choice
Michael> > of venue clauses are good practice because they heighten the degree of
Michael> > predictability of the venue issue, which can be a real pain in the
Michael> > ...
Michael> In general, charging money as part of a contract is good practice
Michael> because common law contracts require a consideration to be
Michael> enforceable, and money is an obvious form of consideration.  That does
Michael> not make it a good practice in free software.

Please read the whole reasoning. It is good prctice for a reason that
is not lawyer selfishness. Heightening the degree of predictability is
good for anyone, regardless of the licensing scheme.

Michael> > Now I agree that they feel uncomfortable in software licenses. But
Michael> > that doesn't necessarily make them non-free. Any lawsuit is
Michael> > uncomfortable, for a number of reasons, and that of the venue is
Michael> > *always* one of those reasons. This clause doesn't alter this fact for
Michael> > better or for worse.
Michael> Choice of venue alters the burden to the better for the licensor and
Michael> the worse for most people in the world, since it allows a lawsuit
Michael> against them to be brought in a foreign jurisdiction.

Please understand that a lawsuit might always be brought against you in
a foreign jurisdiction. That is not an innovation of the choice of
venue clause. Ask Yahoo!.

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

And it still remains to be proven that choice of venue clauses hamper
free software. Do you know of an example where one effectively has?


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