Re: discussion with the FSF: GPLv3, GFDL, Nexenta

[Michael Poole <mdpoole@troilus.org>]

Josselin Mouette writes:

> Le jeudi 24 mai 2007 à 15:36 -0400, Michael Poole a écrit :
>> > Please stop the choice-of-law bullshit. This clause is moot, we can
>> > ignore it.
>> 
>> Moot in what venues?  I live in a state that has enacted the Uniform
>> Computer Information Transactions Act (UCITA), which -- among other
>> things -- gives effect[1] to choice of venue clauses in shrink-wrap
>> licenses unless a party can show that the choice is "unreasonable and
>> unjust".  US courts have made that barrier rather high in practice.
>> 
>> I'm not a fan of judging licenses free because Debian thinks certain
>> clauses are moot.  If the clause is in fact moot, the license is
>> buggy.  If the clause is not moot -- at the time of upload or some
>> point afterwards -- it can cause significant harm.
>
> The reason why the relation between the author and the user would come
> to court can not be the user suing the author, only the author suing the
> user for violating his copyright.
>
> I don't know about the US - and if this is enough to make a license
> non-free, this will give another reason to resurrect the non-us archive
> - but in other countries, the author could only sue the user in the
> latter's juridiction (if the "juridiction" word ever makes sense).
> Whatever is written in the license text will not change that.

The default situation in the US also is that a plaintiff (in the
worrisome case, the software's author) may not select the venue for
his own convenience, but instead must file in a forum that has both
personal jurisdiction over the defendant(s) and subject matter
jurisdiction.

However, most contracts -- any negotiated contract, and many standard
form contracts -- may specify a venue for court actions arising from
the contract.  UCITA makes it clear that shrinkwrap licenses should be
permitted to specify venue in this way.  Only Virginia and Maryland
have enacted UCITA, but a wide variety of other courts (see [1]) have
ruled or held that choices of venue in click-wrap and shrink-wrap
licenses are binding.

[1]- http://eric_goldman.tripod.com/resources/onlinecontractcases.htm

Thus, it is not just reading a law, but also actual history, that
makes many of us presume that license-based forum selection is
binding, and leads us to judge license freedom on that basis.

Separately, for two reasons, I do not think that forum selection is a
good argument for reviving non-us. First, I am not convinced that the
USA is the only place that contractual forum selection is binding; I
suspect there are others.  Second, non-us was used for software that
could not be legally exported from the USA; using non-us for software
under choice-of-venue licenses would both overload the meaning and
mean that the software could not be safely either exported from *or*
_used in_ the United States.  Why then should we not create
"non-europe" for software that is free except for the fact that the
license forbids citizens of European countries from using the
software?  If the DFSG violation arises from the license, the software
belongs in non-free, full stop.

Michael Poole