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

Yorick Cool writes:

> It should be obvious that the silence of a licence is an implicit
> acceptance of the legal effects of laws it could have rejected. Since
> it could have changed those effects, by not speaking, the licence is
> taking a positive stance. Just like the silence of non-copyleft
> licences on any conditions for redistribution are an important feature
> -- not a bug -- of those licences. What a licence does not say is as
> important as what it says, and should not be dismissed as something
> totally unconnected with the licence.

Then I propose that you push for a revision the DFSG to address this.
Make sure you have a good explanation of how it interacts with laws
that restrict operations performed by the software and why a license
should fix the ill effects of the law.  For a recent example of the
practical problems of trying to address those problems in a free
software license, see the GPLv3 discussion draft's anti-DRM section.

> Michael> I do not miss that point at all; I think that the default rules of law
> Michael> are preferable to the imposition of a forum selected by the
> Michael> licensor.
> And why is that, if the effects are the same? Is it just out of some
> kind of irrational hatred of licensors? You have failed to show any
> negative effects that come from the licences taking a stance on forum
> instead of not saying anything.

It is out of an extremely rational kind of skepticism towards
licensors (sometimes called the Tentacles of Evil rule).

>From your claim that I have not shown any negative effects of forum
selection clauses, I conclude that you have not read anything I wrote;
the common theme of my posts is that most copyright lawsuits allege
wrongdoing on the act of a licensee or user (rather than licensor),
that forum selection adds significant costs to the user in this case,
and that the user has no opportunity to negotiate this constraint
before accepting the license.  In whole, this imposes a conditional
but significant cost on users outside that forum.

> Michael> The fact that a
> Michael> license is mute as to human rights or being able to use cryptographic
> Michael> software does not mean that it is non-free in countries that neglect
> Michael> human rights or that outlaw cryptography.  Quite simply, a free
> Michael> software license should not attempt to correct wrongs that exist
> Michael> outside of the software.
> I totally agree. That is why I consider the burden imposed by forum
> rules, be they contractual (deriving from a license) or legal
> (deriving from a law) to be outside of the scope of free software to
> fix. They are wrongs (if indeed they are wrongs) which "exist outside
> of the software" as you put it. Which is why I don't want to make that
> question one which free software should address, and I don't view forum clauses as
> non-free. You are the one trying to fix something in this by rejecting
> these clauses.

This truly is Alice in Wonderland logic, ascribing flaws to my
position when they are actually characteristics of the position that
you defend.

Forum selection clauses try to fix forum uncertainty and irregularity
by forcing parties to the license into a certain place -- which is
always selected because it is convenient to the licensor, with no
consideration of the licensee's convenience.

If the laws governing default fora are flawed, please fix those laws.
Do not "fix" them by forcing free software users to appear in a
foreign court to defend their conduct.

Michael Poole

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