[EMAIL PROTECTED] writes: >> I think that such a clause would be binding in the USA. Courts have >> held that choice of venue clauses in "click-through" agreements are >> binding (Groff v America Online in RI Superior Court, 1998), so I >> suspect a copyright-based license clause would also be binding. >> > > I did a little web searching on this, and it seems that many courts do > reject choice of venue clauses if they are clearly abusive. Here's a > clear statement of it: > > > "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 > > The details, of course, would depend on the venue...
For reference, those guidelines come from an oft-cited New Jersey case[1] that *upheld* a forum selection clause in an MSN click-through agreement, and the appeals court there remarked those rules are similar to US Federal Court guidelines. Which of those would apply to a trial over free software copyright infringement? #1 didn't apply in either of click-through cases. The other two are so vague that I would not want to rely on them to save me from a choice-of-venue clause. At least one holding[2] reads #2 to mean that the public policy interests would have to be exclusive to one forum to favor it for venue. 1- http://www.kentlaw.edu/legalaspects/digital_signatures/Contracting/readings/caspi.htm 2- http://www.paed.uscourts.gov/documents/opinions/01D0290P.pdf Michael Poole
