Jim Marhaus <[EMAIL PROTECTED]> wrote: > Lex Spoon wrote: > > > Why do you think *real* lawyers seem to be okay with such clauses? > > Sometimes parties in a uniformly constructed contract agree to a particular > venue, perhaps because both are qualified to practice law there. In a free > software license or commercial EULA however, the licensee is not at liberty to > negotiate, so the venue clause is wholly to the advantage of the licensor.
First, you are discussing the wrong question. We should be talking about whether the clause is acceptible or beneficial, not which party gets the greater benefit. Second, your two claims are inconsistent. The two parties in each claim might be the same, and the agreement might be the same, and yet you say in one that it is okay and in the other that it *must* be more advantageous to one of the parties. That aside, you have not mentioned the advantages that the non-drafter receives from a choice of forum clause. A mid-stream user of the software, who both receives the software and passes it on, will get the same benefits that the originator of the software is getting. Thus if there is a benefit to the originator, there is clearly a benefit as well for mid-stream distributors. More importantly, though, end users benefit from "knowing" the location a trial will be held. The very same law can have different practical import depending on where it is tried. Just as it is good to know which laws apply to an agreement, it is good to know what kind of trial will be used to interpret those laws. To generalize, it is good for all involved parties to know with greater certainty what the exact agreement is. Both choice of forum and choice of law give exactly this benefit. > "The Draft's choice of forum provision is way out of balance; it > is all the more so when the assent provisions of the Draft form the > basis for the non-drafter's agreement to it." > > http://www.ali.org/ali/Woodward2.htm > On the other hand, plenty of legal theorists agree with my interpretation. Let me give you a sampling. Here is one interesting comment that sums up the situation: "But doesn't this really mean that the licensor can force me to go sue in any place it wants, like China or Iran? That wouldn't be fair. No, it wouldn't. Courts under a rule like the rule in UCITA have been more than capable of invalidating those agreements that are designed simply to prevent someone from suing and that have no reason or commercial basis.4 They will continue to do so under UCITA. If a party has no reason to select a particular jurisdiction and the effect of its selection is unjust, then the selection is invalid. " --http://www.webcom.com/legaled/UCITA/docs/q&apmx.html#CFL3 Here is another fellow lauding choice of forum clauses for consumers, due to the peace of mind they give: "The rich diversity of sources for products and services available on the Internet, the absence of sales pressures, and the opportunity for Internet consumers to have far better access to third-party information about vendors than they possibly could in the physical world, all make it less likely that ecommerce contracts will be inherently unfair or unconscionable. Accordingly, choice of law and forum clauses in online adhesion contracts provide a potentially important source of increased certainty regarding conflicts of law issues." --http://www.kentlaw.edu/cyberlaw/docs/drafts/crawford.html Here's an interesting comment that criticises a treaty for *loosening* choice of venue: "Intellectual property laws are not consistent internationally, however. Critics say the Hague treaty would allow the owners of intellectual property to forum-shop for the most restrictive intellectual property laws and trample on "fair use" and other public rights established in countries like the United States." --http://www.freedom-of-speech.net/hagueconvention.htm And finally, here is a quote saying that choice of venue terms will not be upheld, in many reasonable jurisdictions, if it is viewed as an attempt to make things overly inconvenient for the defendent: "Generally, a choice of forum or venue clause will be upheld unless the court concludes that the result would be unreasonable or unjust under the circumstances. A court will decline to enforce such a clause only if it fits into one of three exceptions to the general rule: (1) the clause is a result of fraud or "overweening" bargaining power; (2) enforcement would violate the strong public policy of the state; or (3) enforcement would seriously inconvenience trial." --http://www.irinfo.org/Articles/article_3_2003_incollingo.pdf Overall, choice of law and venue seem not only like good things to have in a contract, but helpful for the people on debian-legal in evaluating what, exactly, a license is stating. If we are going to spend time analyzing this kind of boilerplate at all, then it actually seems we should *encourage* licenses to include them. But I would prefer that we stay away from these minutia. Most users don't care. The few users who do need every little thing covered, are certainly not going to rely on the judgement of debian-legal; such users need to review the licenses themselves. -Lex
