Re: [Fwd: Debian and CDDL and DFSG]
Matthew Garrett writes:
> Michael Poole <mdpoole@troilus.org> wrote:
>
>> Nobody can or will *stop* someone else from lying. But the liar can
>> face penalties from the legal system: sanctions; liability for
>> malicious prosecution and/or perjury; for the lawyer, potential
>> disbarment. These go away if the license explicitly permits one side
>> to be evil in this way.
>
> And choice of venue makes absolutely no difference here. Either the
> licensor is evil (in which case they'll end up losing and having to pay
> damages, providing that the licensee has had sufficient money to pay for
> the entire costs of the case) - or the licensor is correct in their
> lawsuit, in which case choice of venue merely lets them defend
> themselves more sensibly.
US jurisdictions in general are not loser-pays systems.
>From first-hand experience, regardless of eventual cost, it is a major
inconvenience and impediment to fight a lawsuit 3000 miles away.
(That experience is a large part of why I am so strongly opposed to
this kind of clause.)
Aside from the non-economic costs of an inconvenient forum, there is
also no strong assurance of a defendant with a bulletproof case
breaking even in a strictly monetary sense -- if the evil plaintiff is
sufficiently evil or careful, he will have little or no recoverable
assets by the end of the lawsuit, but he will have driven the
defendant into serious financial inconvenience or bankruptcy.
For background: Software lawsuits are generally federal cases in the
US, which means the "cost of entry" is mid-five-figures USD. That
goes up quickly if there is much fact discovery or motion practice;
mid-six-figures is common, assuming one party can afford it.
Finally, if the defendant settles -- for economic or other reasons --
before a court finally decides in his favor, no loser-pays law or
contract clause will help.
> Discriminating against choice of venue has no significant cost to evil
> licensors, but hurts wronged licensors.
Choice of venue makes life much easier on licensor plaintiffs, whether
they are evil, honestly mistaken, or paragons of rightness. It makes
life much harder on licensees. If you can find a legal system that
makes trials convenient regardless of the parties' geographic
locations, I expect it would be a valid choice of venue. Until then,
one side must get preferential treatment, and I would rather it be the
licensee.
Michael Poole
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