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> 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> 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> 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> 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> 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> 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> 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. -- Yorick
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