Yorick Cool writes: > You have very well elaborated on FOO, it is good example. That means > that if a US licensor established in New York licenses software to > me without specifying anything as to venue, then I shall potentially > be attracted to New York in case of litigation. How is that different > or better for me than if there was a choice of venue clause? Yet in > one case it is free and the in the other it is? I don't understand why.
The default rules of law are irrelevant to a license's freedom. A license with no choice of venue does not force you to go to New York to prosecute a lawsuit any more than it forces you to pet a cat or pay your traffic tickets. > Michael> Nonsense. The law allows me to charge someone $50 for the right to > Michael> copy my software. That does not make a required $50 fee > Michael> DFSG-free. > > Of course it's nonsense, but it's the logical conclusion to the > reasoning according to which letting the law decide is very much > better than a contractual choice of venue. I'm not the one defending > that point of view. It is not the logical conclusion of that reasoning. The law permits a number of restrictions and requirements in a license non-free. That does not make a license that imposes those requirements free. I cannot tell if your confusion is due to misunderstanding or conscious misrepresentation. > Michael> The law will determine at least one venue for each suit, and that > will > Michael> vary by defendant and the particulars alleged in the suit. Setting > Michael> venue by license discriminates against every defendant who is not > Michael> normally subject to that venue, since it changes the rules for them > in > Michael> a potentially very costly way. > > And for others it might change the rules in a non-costly way or not at > all. Thus it is a form of discrimination. It imposes costs (conditional, but still costs) on some people that it does not impose on others. > Michael> > In fact, many lawyers (me included) consider that in general, > choice > Michael> > of venue clauses are good practice because they heighten the > degree of > Michael> > predictability of the venue issue, which can be a real pain in the > Michael> > ... > Michael> > Michael> In general, charging money as part of a contract is good practice > Michael> because common law contracts require a consideration to be > Michael> enforceable, and money is an obvious form of consideration. That > does > Michael> not make it a good practice in free software. > > Please read the whole reasoning. It is good prctice for a reason that > is not lawyer selfishness. Heightening the degree of predictability is > good for anyone, regardless of the licensing scheme. Being compelled to defend a lawsuit in a foreign jurisdiction is not good for anyone. Sure, if you are negotiating a contract, both sides have the opportunity to argue over venue and it is good to specify one. That negotiation is notably absent from licenses like this one. > Michael> Choice of venue alters the burden to the better for the licensor and > Michael> the worse for most people in the world, since it allows a lawsuit > Michael> against them to be brought in a foreign jurisdiction. > > Please understand that a lawsuit might always be brought against you in > a foreign jurisdiction. That is not an innovation of the choice of > venue clause. Ask Yahoo!. Yahoo! did business in France. If they did no business in France, they would not have been subject to that judgment -- even the French court in the case made that point. Similarly, a person who sells Debian only in Japan should not be made to defend against a lawsuit filed in California. > And it still remains to be proven that choice of venue clauses hamper > free software. Do you know of an example where one effectively has? It remains to be proven that petting a cat hampers free software. Do you know of an example where it effectively has? It seems rather more common for a copyright holder to sue users than for users to sue the copyright holder. Choice of venue makes it easier for a malicious copyright holder (some might say the MPAA is acting maliciously) to harass users. Why endorse that? Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]