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

On Thu, Jan 26, 2006 at 10:31:25PM +0100, Yorick Cool wrote:
> 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.

This would mean that any license that doesn't correct "droit d'auteur",
the DMCA, correct human rights violations, overrule laws preventing the
development of cryptography, and disabling patents, is non-free, since
in not trying to fix them, they're "taking a positive stance"?  That's

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

Unless the law says that the venue will be the home turf of the copyright
holder in all cases, the effects *are not the same*.

If the law says the venue is where the defendant lives, as someone claimed,
then the law is clearly making a much more fair selection of venue than
the license.  If I sue Adobe, it goes to California; if they sue me, they
come here.  I have no problem with that.

The license says "even if we sue you, you come to California".  That's
the least fair selection of venue possible, with the defendant having to
pack his bags and fly a couple thousand miles to face his accuser.

> You have failed to show any
> negative effects that come from the licences taking a stance on forum
> instead of not saying anything.

We've explained the above a hundred times.

> 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.

Uh, what?  So now you're saying that any restriction in a software license
that is "outside of the software" is irrelevant to freedom?  A license
that says "you must apprehend a criminal" is free?

Sorry, but your arguments are becoming so strange and incomprehensible that
I don't know how to respond to them, beyond expressing my bewilderment ...

(No restriction *in the license of the software* is "outside the software";
when you say "to have the right to use, copy and modify this program, you
must agree to this condition", the condition immediately and obviously
becomes Free Software's concern.)

Glenn Maynard

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