Anthony DeRobertis writes: > FIRST SCENARIO > -------------- > > Let's say there is a piece of software who's author, Arthur, resides > in France (or many other European countries with similar laws). A US > resident, Jim, decides to modify the software to use it as Nazi > propaganda. [How exactly he does this isn't important]. To avoid > defaming the original author, he makes it clear that the Nazi > propaganda part is added by him, does not reflect the view of the > original author, etc. Tom distributes this modification on the > Internet. > > Arthur, naturally, is offended. Hate speech is illegal in France > (AFAIK). Assuming this is covered by said laws, can he use those laws > to stop Jim? What if there were a choice of law clause or a choice of > venue clause?
Obviously debian-legal isn't a place to get legal advice, and I think most lawyers would demand more details before giving legal advice, so take all this with a grain of salt. If there is a choice of law clause, Arthur could only use French hate-speech laws if the license included a non-free restriction on modification or use of the software. Choice of law clauses can only be used to interpret the license or contract they cover, and free software licenses may not in themselves restrict the kind of modifications that Jim makes. Choice of venue may or may not allow Arthur to apply the hate-speech laws against Jim or Tom in the specified venue; I suspect it would be up to the venue's courts. > Lastly, if there is a choice of venue clause, can Arthur forceT om to > appear in France, where he could be arrested for violating French > hate-speech laws? If the court allows the case in the first place, Tom could be compelled to appear before the court (or decide to never go to Jim's country in the future). Whether he could or would be arrested is up to the criminal justice system (or whatever passes for it) in that country. > [You may want to point out that we shouldn't support hate speech. But > the DFSG is extremely clear; a license can't discriminate. And why > would, say, violating the censorship laws of China be any different? ] A free license may not restrict private use or modification for exactly that kind of reason: so you do not have to worry about the laws of some other country. > SECOND SCENARIO > --------------- > > OK, even if the thought of declaring something non-free because it > can't be used for hate speech leaves a bad taste in your mouth, let's > consider this one. > > Let's take another piece of software. This time the author, John, > resides in the US. Someone in France (assuming France doesn't have a > DMCA equivalent; if it does, pick another country), Abel, decides to > modify the code to make it part of a DVD ripper. Abel distributes this > on the Internet. > > Can John (possibly influenced by the DVD-CCA or MPAA) force Abel to > stop using the DMCA? If there were a choice of law or venue, could he? As a side note, the EU Copyright Directive[1] requires EU member states to implement DMCA-like restrictions on their citizens. The answer to this is the same as the above: With neither choice of law nor choice of venue, unless Abel does business in or frequently visits the US[2], John would have to sue Abel in Abel's local court using the local law. With choice of law, John could apply US laws in Abel's court, but only to the extent that they apply to terms of the license. With choice of venue, it depends on the court and lawyers' skills. [1]- http://www.eucd.org/issues/eucd/ is an informative anti-EUCD page [2]- Since they are loosely defined, I'm glossing over the exact rules for personal jurisdiction; Google that term if you want details. > Could John force Abel to show up in the US, where he would be arrested > for violating the DMCA? The answer is the same as in case 1. Michael Poole
