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

On Thu, Jan 26, 2006 at 11:07:02AM -0500, Michael Poole wrote:
Michael> Yorick Cool writes:
Michael> > You have very well elaborated on FOO, it is good example. That means
Michael> > that if a US licensor established in New York licenses software to
Michael> > me without specifying anything as to venue, then I shall potentially
Michael> > be attracted to New York in case of litigation. How is that different
Michael> > or better for me than if there was a choice  of venue clause? Yet in
Michael> > one case it is free and the in the other it is? I don't understand why.
Michael> The default rules of law are irrelevant to a license's freedom.  A
Michael> license with no choice of venue does not force you to go to New York
Michael> to prosecute a lawsuit any more than it forces you to pet a cat or pay
Michael> your traffic tickets.

If the default rules of law force you to accept a lawsuit brought upon
you in New York, then a license with no choice of venue clause very
much does force you to go to NY if you don't want to. 

The critical point that you are missing is that when a license doesn't
state a rule on a particular point, the default rules of law are de
facto incorporated in it. Hence it is absurd to consider non-free a
license because of a clause which shall have an effect very much
comparable to what a license whith no such clause would
have. (Obviously, this only applies if we consider the "silent"
license as free.)

Michael> > Michael> Nonsense.  The law allows me to charge someone $50 for the right to
Michael> > Michael> copy my software.  That does not make a required $50 fee
Michael> > Michael> DFSG-free.
Michael> > 
Michael> > Of course it's nonsense, but it's the logical conclusion to the
Michael> > reasoning according to which letting the law decide is very much
Michael> > better than a contractual choice of venue. I'm not the one defending
Michael> > that point of view.
Michael> It is not the logical conclusion of that reasoning.  The law permits a
Michael> number of restrictions and requirements in a license non-free.  That
Michael> does not make a license that imposes those requirements free.  I
Michael> cannot tell if your confusion is due to misunderstanding or conscious
Michael> misrepresentation.

You are the one  misunderstanding something. As stated above, if a
license is silent on a certain point, then the default rule of law
applies. If we consider such a license free, then a license which
states something very much comparable to the law should not be
considered non-free.

Maybe an example will make it clearer for you: if California has a
certain family of legal rules, it might well be that a Californian
distributing GPL'ed software he authored could sue me (a belgian in
Belgium) in California. That fact does not make the GPL non-free. A
license with an explicit clause to that effect is no different.

Once again: blame geography, not the license.

Michael> > Michael> The law will determine at least one venue for each suit, and that will
Michael> > Michael> vary by defendant and the particulars alleged in the suit.  Setting
Michael> > Michael> venue by license discriminates against every defendant who is not
Michael> > Michael> normally subject to that venue, since it changes the rules for them in
Michael> > Michael> a potentially very costly way.
Michael> > 
Michael> > And for others it might change the rules in a non-costly way or not at
Michael> > all.
Michael> Thus it is a form of discrimination.  It imposes costs (conditional,
Michael> but still costs) on some people that it does not impose on
Michael> others.

As does every single license on earth, because you could be sued in a
foreign country or not depending on the law of the land.

Michael> > Michael> > In fact, many lawyers (me included) consider that in general, choice
Michael> > Michael> > of venue clauses are good practice because they heighten the degree of
Michael> > Michael> > predictability of the venue issue, which can be a real pain in the
Michael> > Michael> > ...
Michael> > Michael> 
Michael> > Michael> In general, charging money as part of a contract is good practice
Michael> > Michael> because common law contracts require a consideration to be
Michael> > Michael> enforceable, and money is an obvious form of consideration.  That does
Michael> > Michael> not make it a good practice in free software.
Michael> > 
Michael> > Please read the whole reasoning. It is good prctice for a reason that
Michael> > is not lawyer selfishness. Heightening the degree of predictability is
Michael> > good for anyone, regardless of the licensing scheme.
Michael> Being compelled to defend a lawsuit in a foreign jurisdiction is not
Michael> good for anyone.  Sure, if you are negotiating a contract, both sides
Michael> have the opportunity to argue over venue and it is good to specify
Michael> one.  That negotiation is notably absent from licenses like
Michael> this one.

Of course not. But it could happen with any license, including the GPL
and BSD. The only difference here is that you know beforehand from
where the blow will come.

Have I already said: blame geography?

Michael> > Michael> Choice of venue alters the burden to the better for the licensor and
Michael> > Michael> the worse for most people in the world, since it allows a lawsuit
Michael> > Michael> against them to be brought in a foreign jurisdiction.
Michael> > 
Michael> > Please understand that a lawsuit might always be brought against you in
Michael> > a foreign jurisdiction. That is not an innovation of the choice of
Michael> > venue clause. Ask Yahoo!.
Michael> Yahoo! did business in France.  If they did no business in France,
Michael> they would not have been subject to that judgment -- even the French
Michael> court in the case made that point.  Similarly, a person who sells
Michael> Debian only in Japan should not be made to defend against a lawsuit
Michael> filed in California.

The guy who sells Debian in Japan but is the licensee of a Californian
might expect a lawsuit in California. Besides, Japan and California
aren't so far apart :-)

Michael> > And it still remains to be proven that choice of venue clauses hamper
Michael> > free software. Do you know of an example where one effectively has?
Michael> It remains to be proven that petting a cat hampers free software.  Do
Michael> you know of an example where it effectively has?

Well, if there were plenty of licenses requiring petting a cat, I'd
expect their negative effects to show. As it stands, there are plenty
of licenses with choice of venue clauses and their negative effects
still haven't shown. This is obviously not conclusive proof, but it is
still remarkable.

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

I like your MPAA example. It goes to show you just don't need a choice
of venue clause to harass your users. If I were a malicious copyright
holder, choice of venue clauses would be very low on my priorities

A malicious copyright holder of a GPL'ed program could ask all people
using her work to show her with tangible proof that they effectively complied with section
2 a) of the GPL. THat would also be harrassment. It doesn't make the
license non-free.

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