On Thu, Jan 26, 2006 at 11:07:02AM -0500, Michael Poole wrote: Michael> Yorick Cool writes: Michael> Michael> > You have very well elaborated on FOO, it is good example. That means Michael> > that if a US licensor established in New York licenses software to Michael> > me without specifying anything as to venue, then I shall potentially Michael> > be attracted to New York in case of litigation. How is that different Michael> > or better for me than if there was a choice of venue clause? Yet in Michael> > one case it is free and the in the other it is? I don't understand why. Michael> Michael> The default rules of law are irrelevant to a license's freedom. A Michael> license with no choice of venue does not force you to go to New York Michael> to prosecute a lawsuit any more than it forces you to pet a cat or pay Michael> your traffic tickets.
If the default rules of law force you to accept a lawsuit brought upon you in New York, then a license with no choice of venue clause very much does force you to go to NY if you don't want to. The critical point that you are missing is that when a license doesn't state a rule on a particular point, the default rules of law are de facto incorporated in it. Hence it is absurd to consider non-free a license because of a clause which shall have an effect very much comparable to what a license whith no such clause would have. (Obviously, this only applies if we consider the "silent" license as free.) Michael> > Michael> Nonsense. The law allows me to charge someone $50 for the right to Michael> > Michael> copy my software. That does not make a required $50 fee Michael> > Michael> DFSG-free. Michael> > Michael> > Of course it's nonsense, but it's the logical conclusion to the Michael> > reasoning according to which letting the law decide is very much Michael> > better than a contractual choice of venue. I'm not the one defending Michael> > that point of view. Michael> Michael> It is not the logical conclusion of that reasoning. The law permits a Michael> number of restrictions and requirements in a license non-free. That Michael> does not make a license that imposes those requirements free. I Michael> cannot tell if your confusion is due to misunderstanding or conscious Michael> misrepresentation. You are the one misunderstanding something. As stated above, if a license is silent on a certain point, then the default rule of law applies. If we consider such a license free, then a license which states something very much comparable to the law should not be considered non-free. Maybe an example will make it clearer for you: if California has a certain family of legal rules, it might well be that a Californian distributing GPL'ed software he authored could sue me (a belgian in Belgium) in California. That fact does not make the GPL non-free. A license with an explicit clause to that effect is no different. Once again: blame geography, not the license. Michael> > Michael> The law will determine at least one venue for each suit, and that will Michael> > Michael> vary by defendant and the particulars alleged in the suit. Setting Michael> > Michael> venue by license discriminates against every defendant who is not Michael> > Michael> normally subject to that venue, since it changes the rules for them in Michael> > Michael> a potentially very costly way. Michael> > Michael> > And for others it might change the rules in a non-costly way or not at Michael> > all. Michael> Michael> Thus it is a form of discrimination. It imposes costs (conditional, Michael> but still costs) on some people that it does not impose on Michael> others. As does every single license on earth, because you could be sued in a foreign country or not depending on the law of the land. Michael> > Michael> > In fact, many lawyers (me included) consider that in general, choice Michael> > Michael> > of venue clauses are good practice because they heighten the degree of Michael> > Michael> > predictability of the venue issue, which can be a real pain in the Michael> > Michael> > ... Michael> > Michael> Michael> > Michael> In general, charging money as part of a contract is good practice Michael> > Michael> because common law contracts require a consideration to be Michael> > Michael> enforceable, and money is an obvious form of consideration. That does Michael> > Michael> not make it a good practice in free software. Michael> > Michael> > Please read the whole reasoning. It is good prctice for a reason that Michael> > is not lawyer selfishness. Heightening the degree of predictability is Michael> > good for anyone, regardless of the licensing scheme. Michael> Michael> Being compelled to defend a lawsuit in a foreign jurisdiction is not Michael> good for anyone. Sure, if you are negotiating a contract, both sides Michael> have the opportunity to argue over venue and it is good to specify Michael> one. That negotiation is notably absent from licenses like Michael> this one. Of course not. But it could happen with any license, including the GPL and BSD. The only difference here is that you know beforehand from where the blow will come. Have I already said: blame geography? Michael> > Michael> Choice of venue alters the burden to the better for the licensor and Michael> > Michael> the worse for most people in the world, since it allows a lawsuit Michael> > Michael> against them to be brought in a foreign jurisdiction. Michael> > Michael> > Please understand that a lawsuit might always be brought against you in Michael> > a foreign jurisdiction. That is not an innovation of the choice of Michael> > venue clause. Ask Yahoo!. Michael> Michael> Yahoo! did business in France. If they did no business in France, Michael> they would not have been subject to that judgment -- even the French Michael> court in the case made that point. Similarly, a person who sells Michael> Debian only in Japan should not be made to defend against a lawsuit Michael> filed in California. The guy who sells Debian in Japan but is the licensee of a Californian might expect a lawsuit in California. Besides, Japan and California aren't so far apart :-) Michael> > And it still remains to be proven that choice of venue clauses hamper Michael> > free software. Do you know of an example where one effectively has? Michael> Michael> It remains to be proven that petting a cat hampers free software. Do Michael> you know of an example where it effectively has? Well, if there were plenty of licenses requiring petting a cat, I'd expect their negative effects to show. As it stands, there are plenty of licenses with choice of venue clauses and their negative effects still haven't shown. This is obviously not conclusive proof, but it is still remarkable. Michael> It seems rather more common for a copyright holder to sue users than Michael> for users to sue the copyright holder. Choice of venue makes it Michael> easier for a malicious copyright holder (some might say the MPAA is Michael> acting maliciously) to harass users. Why endorse that? I like your MPAA example. It goes to show you just don't need a choice of venue clause to harass your users. If I were a malicious copyright holder, choice of venue clauses would be very low on my priorities list. A malicious copyright holder of a GPL'ed program could ask all people using her work to show her with tangible proof that they effectively complied with section 2 a) of the GPL. THat would also be harrassment. It doesn't make the license non-free. -- Yorick
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