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

On Thu, Jan 26, 2006 at 05:42:40PM -0500, Glenn Maynard wrote:
Glenn> On Thu, Jan 26, 2006 at 10:31:25PM +0100, Yorick Cool wrote:
Glenn> > It should be obvious that the silence of a licence is an implicit
Glenn> > acceptance of the legal effects of laws it could have rejected. Since
Glenn> > it could have changed those effects, by not speaking, the licence is
Glenn> > taking a positive stance. Just like the silence of non-copyleft
Glenn> > licences on any conditions for redistribution are an important feature
Glenn> > -- not a bug -- of those licences. What a licence does not say is as
Glenn> > important as what it says, and should not be dismissed as something
Glenn> > totally unconnected with the licence.
Glenn> This would mean that any license that doesn't correct "droit d'auteur",
Glenn> the DMCA, correct human rights violations, overrule laws preventing the
Glenn> development of cryptography, and disabling patents, is non-free, since
Glenn> in not trying to fix them, they're "taking a positive stance"?  That's
Glenn> ridiculous.

Yes, it is ridiculous. Of course, it doesn't have anything to do with
what I said. 

First, I was unaware that to be a free license, a license had to
correct all those things. What you and your friend M. Poole don't seem
to see is that I'm saying that a forum clause does not make a license
either free or non-free, but is basically irrelevant.

Anyway, to come back to the main point, what distinguishes the forum
selection clause from your examples is that in the case of forum
selection, there is a default legal rule (changing from system to
system) which is every bit as precise as any clause could be. To a
lawyer of a country in which the default forum is the defender's home,
a license without a forum clause is equivalent to one stating that the
applicable forum is the defender's forum. In some countries, such
rules are called implied terms or suppletive terms.

Hence an absence of forum clause assumes a very precise rule.

In the cases you cite, it would take a positive statement to start
having an effect on the matters at hand such as patents, human rights
or what will you. Without a clause pertaining to those matters, a
license has no effect whatsoever in those realms. A license silent on
those matters does nothing either for or against those questions. Whereas a 
license that says nothing about the forum actually implies that the
forum shall be the default one of the country.

Do you see the difference?

Glenn> > Michael> > The critical point that you are missing is that when a license doesn't
Glenn> > Michael> > state a rule on a particular point, the default rules of law are de
Glenn> > Michael> > facto incorporated in it. Hence it is absurd to consider non-free a
Glenn> > Michael> > license because of a clause which shall have an effect very much
Glenn> > Michael> > comparable to what a license whith no such clause would
Glenn> > Michael> > have. (Obviously, this only applies if we consider the "silent"
Glenn> > Michael> > license as free.)
Glenn> > Michael> 
Glenn> > Michael> I do not miss that point at all; I think that the default rules of law
Glenn> > Michael> are preferable to the imposition of a forum selected by the
Glenn> > Michael> licensor.
Glenn> > 
Glenn> > And why is that, if the effects are the same? Is it just out of some
Glenn> > kind of irrational hatred of licensors? 
Glenn> Unless the law says that the venue will be the home turf of the copyright
Glenn> holder in all cases, the effects *are not the same*.

It is very much possible that such is the case in some venues. In
fact, I have a feeling it is the case somewhere, but I can't remember off the
top of my head where.

Glenn> If the law says the venue is where the defendant lives, as someone claimed,
Glenn> then the law is clearly making a much more fair selection of venue than
Glenn> the license.  If I sue Adobe, it goes to California; if they sue me, they
Glenn> come here.  I have no problem with that.
Glenn> The license says "even if we sue you, you come to California".  That's
Glenn> the least fair selection of venue possible, with the defendant having to
Glenn> pack his bags and fly a couple thousand miles to face his
Glenn> accuser.

The thing you keep missing and refusing to answer is that in the real
world, there are laws saying approximately everything that is
possible. So by default, some licensees will have to fly to
California, and some won't. That is not an optimal solution. The
situation with a choice of venue is not optimal either. Hence, nothing
really distinguishes them enough to consider one situation as free and the
other as non-free.

Glenn> > You have failed to show any
Glenn> > negative effects that come from the licences taking a stance on forum
Glenn> > instead of not saying anything.
Glenn> We've explained the above a hundred times.

Ditto. And I'll do it again. Without such a clause, some licensees
will have to travel to California anyway, and some won't. This
situation is neither more free or less free than the situation with the clause.

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

If it is a condition to enjoy the use of the software, then no. But in
case you didn't notice, you don't have to fly to California to enjoy
the software with the choice of venue clause. 

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

It is not at all the same thing to agree to a forum as to agree o
going somewhere. It makes a whole lot of a difference. 

By the way, you people do know that in most countries you absolutely
are not required to go to court in person when you are sued right?
It's enough to appoint a lawyer. And you can even be tried by default,
which is sometimes advantageous in Europe.


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