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

Yorick Cool writes:

> 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.

The default rules of law are irrelevant to a license's freedom.  A
license with no choice of venue does not force you to go to New York
to prosecute a lawsuit any more than it forces you to pet a cat or pay
your traffic tickets.

> 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.

It is not the logical conclusion of that reasoning.  The law permits a
number of restrictions and requirements in a license non-free.  That
does not make a license that imposes those requirements free.  I
cannot tell if your confusion is due to misunderstanding or conscious

> 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
> all.

Thus it is a form of discrimination.  It imposes costs (conditional,
but still costs) on some people that it does not impose on others.

> 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> 
> 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.

Being compelled to defend a lawsuit in a foreign jurisdiction is not
good for anyone.  Sure, if you are negotiating a contract, both sides
have the opportunity to argue over venue and it is good to specify
one.  That negotiation is notably absent from licenses like this one.

> 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!.

Yahoo! did business in France.  If they did no business in France,
they would not have been subject to that judgment -- even the French
court in the case made that point.  Similarly, a person who sells
Debian only in Japan should not be made to defend against a lawsuit
filed in California.

> 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?

It remains to be proven that petting a cat hampers free software.  Do
you know of an example where it effectively has?

It seems rather more common for a copyright holder to sue users than
for users to sue the copyright holder.  Choice of venue makes it
easier for a malicious copyright holder (some might say the MPAA is
acting maliciously) to harass users.  Why endorse that?

Michael Poole

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