Re: BOINC: lib/cal.h license issue agree with the DFSG?
Sean Kellogg writes:
> On Monday 04 January 2010 09:15:20 am Michael Poole wrote:
>> Sean Kellogg writes:
>>
>> > You can object all you want. I'm not say that choice-of-venue clauses
>> > are somehow "great"... just saying that aren't prohibited by the
>> > DFSG. The DFSG does not give you everything you want, only what you
>> > need :)
>>
>> The usual argument is that choice of venue violates DFSG #5 by
>> discriminating against people who live outside the venue. Is there some
>> tenable argument that these license actually don't discriminate against
>> these users?
>
> The discrimination clause is so very overblown on this list... it
> seems it is used to defend against any license clause these
> days. Heaven help us if the DFSG #10 didn't explicitly say the GPL was
> covered.
Argument by flat assertion tends not to change many minds. What
problems would the GPL have under the reading of "discrimination" that I
suggested? Rather than just saying it's an undesirable reading of
DFSG#5, can you propose a better reading or explain why it is so
undesirable?
> I don't consider choice-of-venue to be discrimination, it simple
> pre-determines a question that /must/ be answered before the a
> possible law suit can begin. That the decision is made to the
> disadvantage of the user isn't discrimination, it just /is/. But let's
> consider this clause for just a moment.
That question /must/ be answered, indeed -- but what business does a
software license have in dictating how it should be answered? We do not
allow software licenses to dictate the side of road on which users
drive. (Having to drive on the left side of the road does not
discriminate against some users, it just /is/!)
Step back and look at your argument. You argue that the license *does*
make that determination, and that in doing so it *does* disadvantage
some users, but that it does not matter if it does. Your reason for
saying that it does not matter seems to hinge on it being potentially
expensive to answer the question. The goal of the DFSG is not to
minimize overall cost -- it is to increase users' software freedoms, and
the analysis should be couched in those terms rather than in overall
cost avoidance.
(I can tell you almost for certain that it is cheaper for a user to use
the default venue rules, and litigate that issue, than to have enforced
foreign venue. In my single data point -- admittedly not revolving
around copyright or a software license -- dismissal for lack of personal
jurisdiction would have run several thousand dollars and a full civil
Federal trial would have cost about twenty times as much. If that case
were in my local jurisdiction, I could have gone pro se.)
> 1) You download the code in some EU country and promptly violate the terms of the license (though, how you would actually violate them in a way they would pursue is really beyond me).
>
> 2) AMD brings suit against you in some US district court.
>
> 3) You decide the case is stupid and refuse to attend, as is your legal right.
>
> 4) A default judgment is entered against you for failure to show up for $1 million!!!
>
> 5) AMD can't do squat at this point. Unless the court that issued the judgment has control over assets you own, they can't actually do anything to you. So now AMD has to go and sue you at your home anyway.
>
> But in those situations where the user does have assets under jurisdiction of the court in question, they have previously chosen to have some ties to that jurisdiction. And /now/ it really is a question of which venue, because both sides of interests to protect. As I stated before, we can either have venue pre-decided, or we can have a round of expensive legal briefs.
Under the Hague Convention on Foreign Judgments in Civil and Commercial
Matters[1], many countries (including the US, most or all of the EU, and
others) have agreed to enforce foreign judgments in their own courts.
While I have heard of one case where UK courts declined to enforce a US
default judgment against a UK resident, it does not appear that default
judgments are inherently excepted from the Convention.
As I am sure you are aware, it is easier for a plaintiff to enforce an
existing judgment than to win a case ab initio.
[1]- http://www.legallanguage.com/resources/treaties/hague/1971-february-1st-convention-1/
Michael
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