Re: Adobe open source license -- is this licence free?
Raul Miller wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. The big deal here is that if someone sues Adobe, Adobe doesn't have to incur huge legal fees defending themselves. Since it's free software, why would they want to? If that is were actually what they wrote, I think a lot more people here would be willing to accept it. E.g, they could have said: Any dispute arising out of or related to this Agreement shall be brought in the courts of the jurisdiction in which the defendant resides. However, they did not say that. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Fri, Feb 10, 2006 at 07:21:44PM -0500, Anthony DeRobertis wrote: If that is were actually what they wrote, I think a lot more people here would be willing to accept it. E.g, they could have said: Any dispute arising out of or related to this Agreement shall be brought in the courts of the jurisdiction in which the defendant resides. However, they did not say that. This still affects claims made by the licensor against a licensee. On its face, it doesn't seem as big a deal, since it ends up near the licensee. But as a user of the software, merely using or distributing the software should not subject me, if I become a defendant, to the licensor's notions of correct venue law. Compare to: 6.5 This Licence is governed by the law of Scotland and the parties accept the exclusive jurisdiction of the Courts of Scotland to decide any action or claim directed against the Licensor. which is clearly only for claims against the licensor. However, the explicit naming of venue seems like a problem if the program is forked[1]. So, how about (IANAL): Any dispute arising out of or related to this Agreement against the Licensor shall be brought in the courts of the jurisdiction in which the defendant resides. (I'm not sure, however, if resides is a legally meaningful term, when the defendant isn't an individual.) [1] Message-Id: [EMAIL PROTECTED] and followups. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/30/06, Walter Landry [EMAIL PROTECTED] wrote: Doesn't this cause problems when the code is forked? If someone in France forks the code, then they have to travel to Scotland to defend themselves against any frivolous lawsuits. That allows the original licensors a bit more control over the code than might be desired. This is a real issue, and I would not have any problem asking the folks at Adobe if they could clean up the way the license addresses this case. But I think we should also come up with one or more somewhat plausible suggestions, to give an idea of what we're looking for. As a rough first cut, perhaps: Any dispute naming Adobe as a defendant, arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. (I don't think this creates any unusual advantage for Adobe because authors of derivative works can impose a similar requirement on their work.) -- Raul
Re: Adobe open source license -- is this licence free?
On 1/29/06, Don Armstrong [EMAIL PROTECTED] wrote: On Sun, 29 Jan 2006, Raul Miller wrote: You can still claim that the court in question does not have jurisdiction over the parties. You can claim that the moon is cheese too, if you want.[1] The point is that in order for the court to agree that they don't have jurisdiction, you have to get them to agree that the clause is non-binding. [The claiming is a lessser issue; what the court has to do in order to agree with your claims is critical here.] My point was that a harassing case based on this license would be much akin to claiming that the moon is cheese. Only if the case has merit -- only if there's a valid dispute involving the license -- would the CA courts have jurisdiction. Issues of jurisdiction are one of the first things to be determined in most cases, they occur well before the court even begins entertaining issues of merit.[2] For this clause of the license to apply at all, there would need to be a dispute about something related to the license. That means a dispute about Adobe's customer service or warranty support for this software, or a displute about the software being distributed without proper copyright notices or with improper trademark notices. So this aspect -- what is the dispute about -- would have to be resolved as a part of resolving issues about jurisdiction. I was not trying to say that all issues of merit would have to be resolved. -- Raul
Re: Adobe open source license -- is this licence free?
On Sun, 29 Jan 2006 22:17:47 -0800 (PST) Walter Landry wrote: Nathanael Nerode [EMAIL PROTECTED] wrote: [...] Here's the attribution version: http://creativecommons.org/licenses/by/2.5/scotland/legalcode 6.5 This Licence is governed by the law of Scotland and the parties accept the exclusive jurisdiction of the Courts of Scotland to decide any action or claim directed against the Licensor. Doesn't this cause problems when the code is forked? If someone in France forks the code, then they have to travel to Scotland to defend themselves against any frivolous lawsuits. That allows the original licensors a bit more control over the code than might be desired. I am not sure that allowing choice of venue clauses to be overridded is ever a good idea. The law has a number of (imperfect) safety hatches to prevent forum selection abuse. Mmmmh, that seems to be a problem too and one I hadn't thought about before... -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpUGnlLisBFW.pgp Description: PGP signature
Re: Adobe open source license -- is this licence free?
On Mon, Jan 30, 2006 at 04:39:33PM -0500, Nathanael Nerode wrote: If it's not a copyleft: * the Scotland-venue clause in the original license only applies to claims against the original licensor of the original software * the French forker uses a license without that clause for his own modifications (perhaps with a French court clause). Suits against him, as licensor of the modified version, go to his French court. The result of this taken to the extreme, where lots of contributors from lots of different countries did this, might not become less free as such, but would become an unbearable mess (think 50 countries, with 50 choice of venue clauses, one for each depending on who you want to sue). (The next thought, of course, is replacing French with something like the home-country-or-something of the copyright holder, but that's a whole new ugly bag of worms.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Sun, 29 Jan 2006, Raul Miller wrote: Beyond that: if Adobe files in a CA court, even without this clause a person is still going to have to deal with that situation somehow. And if the action is specious, the person can simply dispute that the license is relevant to the action. The difference is that without this clause, the first step is to claim that the court in question does not have jurisdiction over the parties.[1] With this clause, before you can get the court to agree that California is an improper venue, you have to get the court to agree that the clause is non-binding. That in a nutshell is the issue. I personally would want to know if any software that I am using contained such a clause so I could avoid using it;[1] I think it behooves us to do the same for our users. Don Armstrong 1: I even *live* in California... -- Taxes are not levied for the benefit of the taxed. -- Robert Heinlein _Time Enough For Love_ p250 http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Sat, Jan 28, 2006 at 04:01:30PM -0500, Raul Miller wrote: On 28 Jan 2006 11:32:08 -0500, Michael Poole [EMAIL PROTECTED] wrote: I submit that, under this logic, fees to execute software or create derivative works are free since they are not mentioned anyhere in the DFSG. The usual response to this is that Debian would be restricted in doing things like porting software, fixing bugs, and so forth. The SC and DFSG make no mention of those tasks, either. I think that people who use the software constitutes a relevant group of people for The license must not discriminate against any person or group of persons. I think people who don't use the software and people who violate the license terms do not constitute relevant groups of people. Furthermore, I don't think the problem with this license is a problem with the license at all. It's that some people have a problem with the licensor. No. Read the list archives. Those of us who argue against choice-of-venue have been doing so for months, on licenses from a wide range of licensors. It just happens that the argument against choice-of-venue is predicated on the possibility of a hostile licensor going sue-happy and using this license clause to get away with harrassment suits *that they otherwise could not afford to carry out separately and would not withstand the barest scrutiny if brought against everyone in their home court as a single suit*. License freeness certainly should be analyzed without regard for the identity of the copyright holder[1]; it should be *assumed* that the copyright holder is hostile, because *copyrights can be transferred*. And here we have the most perfect example imaginable of a license being offered by a copyright holder with a known and public history of hostility towards information freedom, and people still don't acknowledge that there's a risk here. It's flabbergasting! Since the GPL could just as easily be abused for harassment purposes (requiring proof of compliance for every copy delivered, or some nonsense like that), No, what you describe would be a bug in the legal system, not a bug in the license. That's a crucial difference. There is nothing *in the GPL* that gives the copyright holder unfair leverage to sue a bunch of people at low per-unit cost to them. -- Steve Langasek Give me a lever long enough and a Free OS Debian Developer to set it on, and I can move the world. [EMAIL PROTECTED] http://www.debian.org/ [1] as distinct from clarifying statements the copyright holder has *made* about their intent signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
[EMAIL PROTECTED] wrote: here we have the most perfect example imaginable of a license being offered by a copyright holder with a known and public history of hostility towards information freedom, and people still don't acknowledge that there's a risk here. It's flabbergasting! The point is not if there is a risk or not, but if this is allowed or not by the DFSG. -- ciao, Marco -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Sun, 29 Jan 2006 15:18:32 +1100 Andrew Donnellan wrote: I think DFSG#5 was written not because of this, but because of licenses that exclude some uses of the software, e.g. nuclear weapons factories, animal torture and things that people dislike. That is DFSG#6, not #5. -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpxbFUNzQDa3.pgp Description: PGP signature
Re: Adobe open source license -- is this licence free?
On 1/29/06, Don Armstrong [EMAIL PROTECTED] wrote: The difference is that without this clause, the first step is to claim that the court in question does not have jurisdiction over the parties.[1] With this clause, before you can get the court to agree that California is an improper venue, you have to get the court to agree that the clause is non-binding. You can still claim that the court in question does not have jurisdiction over the parties. Only if the case has merit -- only if there's a valid dispute involving the license -- would the CA courts have jurisdiction. On 1/29/06, Steve Langasek [EMAIL PROTECTED] wrote: No, what you describe would be a bug in the legal system, not a bug in the license. That's a crucial difference. There is nothing *in the GPL* that gives the copyright holder unfair leverage to sue a bunch of people at low per-unit cost to them. I'm still not convinced that this phrase Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. gives the copyright holder unfair leverage against anyone in any free software context. It gives Adobe some advantage if someone tries to sue them for not providing a support for the software, but why should I care about that? What is the risk here? What dispute can Adobe initiate against someone in a legit free software context that wouldn't get laughed out of court? Trade secrets? This ageement doesn't say anything about trade secrets. Violation of copyright? The only way to violate this copyright is to take more from Adobe than they've given. Patents? This agreement doesn't say anything about patents. Trademarks? That's already a problem, and I don't think we have any free software requirement that people have to be able to falsely claim a right to other people's trademarks. But let's take trademarks as an example, since the license does talk about trademarks. If the trademark itself is in dispute, it's not clear that the license is relevant -- only after you've lost the case and it's been shown that you are abusing Adobe's trademarks would this license be relevant. And, usually people come to an accomodation long before a court has to rule on that kind of thing. So what is this harassing legal action going to be about? Thanks, -- Raul
Re: Adobe open source license -- is this licence free?
On Sun, 29 Jan 2006, Raul Miller wrote: On 1/29/06, Don Armstrong [EMAIL PROTECTED] wrote: The difference is that without this clause, the first step is to claim that the court in question does not have jurisdiction over the parties.[1] With this clause, before you can get the court to agree that California is an improper venue, you have to get the court to agree that the clause is non-binding. You can still claim that the court in question does not have jurisdiction over the parties. You can claim that the moon is cheese too, if you want.[1] The point is that in order for the court to agree that they don't have jurisdiction, you have to get them to agree that the clause is non-binding. [The claiming is a lessser issue; what the court has to do in order to agree with your claims is critical here.] Only if the case has merit -- only if there's a valid dispute involving the license -- would the CA courts have jurisdiction. Issues of jurisdiction are one of the first things to be determined in most cases, they occur well before the court even begins entertaining issues of merit.[2] Don Armstrong 1: Well, you'll likely be found in contempt for that... but... ;-) 2: We're almost into year 3 of the SCO case and we still haven't answered the critical question of whether the case has any merit or not... -- When I was a kid I used to pray every night for a new bicycle. Then I realised that the Lord doesn't work that way so I stole one and asked Him to forgive me. -- Emo Philips. http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Nathanael Nerode [EMAIL PROTECTED] wrote: On Thu, Jan 26, 2006 at 01:18:55AM -0500, Nathanael Nerode wrote: To be more specific, we generally consider choice-of-venue non-free when it applies to suits brought by the copyright holder (/licensor) against other people. It's free when it only applies to suits brought by other people against the copyright holder (/licensor). Glenn Maynard wrote: I think I agree, but I don't know of a license brought here that actually does this--I don't think it's been discussed. Know of any examples, so we can wave it around for a while and maybe conclude this for certain? Being able to give an alternative to a general choice of venue clause that is uncontroversially free might go a long way towards fixing the problem. Scottish Creative Commons license, attribution or attribution-sharealike. (Drafted with our assistance. And I believe 100% free. And in fairly plain English. I love this license.) Here's the attribution version: http://creativecommons.org/licenses/by/2.5/scotland/legalcode 6.5 This Licence is governed by the law of Scotland and the parties accept the exclusive jurisdiction of the Courts of Scotland to decide any action or claim directed against the Licensor. Doesn't this cause problems when the code is forked? If someone in France forks the code, then they have to travel to Scotland to defend themselves against any frivolous lawsuits. That allows the original licensors a bit more control over the code than might be desired. I am not sure that allowing choice of venue clauses to be overridded is ever a good idea. The law has a number of (imperfect) safety hatches to prevent forum selection abuse. Cheers, Walter Landry [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
[EMAIL PROTECTED] wrote: There's little or no evidence that requiring creators of a derivative of some software to identify themselves would prevent a free use of the software. Does that mean the Dissident test is irrelevant? Well, yes. It's just something that a few people here invented, but you would need to stretch the DFSG a lot to support it. -- ciao, Marco -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Another dose of pain to plonked Miller and other FSF's lackeys (kudos to Wallace for calling the bluff)... On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: Hey plonked Miller, breaking news... On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote: On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: What argument? http://lists.debian.org/debian-legal/2006/01/msg00475.html Edwards has already explained it to you. A question of law is addressed by likelihood of success on that portion breach of contract claim that concerns its trademark (with another portion being breach of the GPL), by cure the breach (one just can't cure a copyright violation), by not applying (In any event, even if MySQL has shown a likelihood of success on these points...) the copyright standard with presumption of irreparable harm (and using contract standard instead), and etc. Wallace v FSF. REPLY BRIEF IN SUPPORT OF REASSERTED MOTION TO DISMISS: quote Plaintiff's mischaracterization of the GPL in his Response has no bearing on the resolution of the pending Motion to Dismiss because the Court can examine the GPL itself. [T]o the extent that the terms of an attached contract conflict with the allegations of the complaint, the contract controls. /quote Reactions to that latest FSF' piece of impeccable lawyering: Re: FSF says that the contract controls by: day5done The lawyers for the FSF must'a been smokin' the good stuff from Merkey's stash. Everyone who is neither blind nor an idiot knows for certain that the GPL is a *LICENSE NOT A CONTRACT* -- Richard Stallman has clarified that fact at least a hundred times. Dollar to a dime Eben Moglen fires the lame asses over at the ICE MILLER law firm real soon. - GPL Hollaaring by: walter_oak_night ICE on automatic aggregation of software copyrights In fact, the GPL itself rejects any automatic aggregation of software copyrights under the GPL simply because one program licensed under the GPL is distributed together with another program that is not licensed under the GPL: In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. Linux kernel v. application And as the copyright notice in the kernel sources says, user applications are not subject to the GPL. Supported by Hollaar: With dynamically-linked libraries, the application program being distributed is no longer a compilation that includes the library. Because the library is not being distributed with the application program, no permission is needed from the copyright owner of the library for the distribution to users. Users must, of course, be authorized to use the library, but if they are owners of a copy of the library, under Section 117 they can make any adaptations of the library necessary to use it with the application program. FSF GPL FAQ I'd like to modify GPL-covered programs and link them with the portability libraries from Money Guzzler Inc. I cannot distribute the source code for these libraries, so any user who wanted to change these versions would have to obtained those libraries separately. Why doesn't the GPL permit this? …. http://www.gnu.org/licenses/gpl-faq.html#MoneyGuzzlerInc FAQ as Fact In 2002, a company named Global Technologies Ltd (now defunct) had ported some 4.5M lines of GPL/BSD and other open source code to Windows using ATT Uwin. They claimed less than 500 lines had to be changed and all changes went back to original authors. The binaries were distributed from their web site, but one day disappeared. My $50.00 check for a CD distribution of the binaries and source, which indicated $25 gift to FSF, was returned with a letter explaining Moglan threatened legal action for violating the GPL because the code was linked with ATT uwin's proprietary posix.dll that provided the POSIX interface on windows. Hollaar disagress Some have claimed that an application program that needs a library for its operation is a derivative work of that library. They take that position because the application program is based on the library because it was written to use the subroutines and other aspects of the library. Such a position is misplaced No other conclusion makes sense. If it were not the case, then any program using the applications program interfaces (APIs) of an operating system could be considered a derivative work of that operating system. And, under the exclusive right to prepare derivative works, the copyright owner of an operating system such as Microsoft Windows could control who was allowed to write programs for that operating system. What was that automatic rejection again? - - Re: GPL Hollaaring FAQ or Fiction by: walter_oak_night Moglen got on the phone, resulting in both of the attorneys
Re: Adobe open source license -- is this licence free?
On Friday 27 January 2006 20:29, Michael Poole wrote: There's little or no evidence that requiring creators of a derivative of some software to identify themselves would prevent a free use of the software. Does that mean the Dissident test is irrelevant? Yeah, since the dissident test has nothing do to with the DFSG, except by quite a big a stretch of the imagination. Not to say it's not a valuable thought experiment in some cases, but it sure isn't the great canonical test that some people here seem to think it is. -- Wesley J. Landaker [EMAIL PROTECTED] xmpp:[EMAIL PROTECTED] OpenPGP FP: 4135 2A3B 4726 ACC5 9094 0097 F0A9 8A4C 4CD6 E3D2 pgpK0TpmXV6BB.pgp Description: PGP signature
Re: Adobe open source license -- is this licence free?
Wesley J. Landaker writes: On Friday 27 January 2006 20:29, Michael Poole wrote: There's little or no evidence that requiring creators of a derivative of some software to identify themselves would prevent a free use of the software. Does that mean the Dissident test is irrelevant? Yeah, since the dissident test has nothing do to with the DFSG, except by quite a big a stretch of the imagination. Not to say it's not a valuable thought experiment in some cases, but it sure isn't the great canonical test that some people here seem to think it is. I submit that, under this logic, fees to execute software or create derivative works are free since they are not mentioned anyhere in the DFSG. The usual response to this is that Debian would be restricted in doing things like porting software, fixing bugs, and so forth. The SC and DFSG make no mention of those tasks, either. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 28 Jan 2006 11:32:08 -0500, Michael Poole [EMAIL PROTECTED] wrote: Wesley J. Landaker writes: On Friday 27 January 2006 20:29, Michael Poole wrote: There's little or no evidence that requiring creators of a derivative of some software to identify themselves would prevent a free use of the software. Does that mean the Dissident test is irrelevant? Yeah, since the dissident test has nothing do to with the DFSG, except by quite a big a stretch of the imagination. Not to say it's not a valuable thought experiment in some cases, but it sure isn't the great canonical test that some people here seem to think it is. I submit that, under this logic, fees to execute software or create derivative works are free since they are not mentioned anyhere in the DFSG. The usual response to this is that Debian would be restricted in doing things like porting software, fixing bugs, and so forth. The SC and DFSG make no mention of those tasks, either. http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:11413 http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:11421 regards, alexander.
Re: Adobe open source license -- is this licence free?
On 28 Jan 2006 11:32:08 -0500, Michael Poole [EMAIL PROTECTED] wrote: I submit that, under this logic, fees to execute software or create derivative works are free since they are not mentioned anyhere in the DFSG. The usual response to this is that Debian would be restricted in doing things like porting software, fixing bugs, and so forth. The SC and DFSG make no mention of those tasks, either. I think that people who use the software constitutes a relevant group of people for The license must not discriminate against any person or group of persons. I think people who don't use the software and people who violate the license terms do not constitute relevant groups of people. Furthermore, I don't think the problem with this license is a problem with the license at all. It's that some people have a problem with the licensor. Since the GPL could just as easily be abused for harassment purposes (requiring proof of compliance for every copy delivered, or some nonsense like that), I think that this kind of thing should not be thought of as a DFSG issue. Finally, if Adobe were to start with harassing lawsuits, where they claim some bogus violation of this license, they could very well find themselves faced with counter-suits for abuse of the judicial process to discourage participation in matters of public interest. This might seem a stretch to you, but arguments have been made (and not struck down) in Bernstein v. United States that computer software, including especially programs can be speech protected by the first amendment. This protection is an explicit part of California law, and the license explicitly states that California law is relevant to all disputes involving the license. I don't think Adobe would want to expose themselves to that kind of risk, so I think we can take this license at face value. -- Raul
Re: Adobe open source license -- is this licence free?
Raul Miller writes: On 28 Jan 2006 11:32:08 -0500, Michael Poole [EMAIL PROTECTED] wrote: I submit that, under this logic, fees to execute software or create derivative works are free since they are not mentioned anyhere in the DFSG. The usual response to this is that Debian would be restricted in doing things like porting software, fixing bugs, and so forth. The SC and DFSG make no mention of those tasks, either. I think that people who use the software constitutes a relevant group of people for The license must not discriminate against any person or group of persons. Sure. I think people who don't use the software and people who violate the license terms do not constitute relevant groups of people. I think people who modify the software without using it should be protected against discrimination; for example, porters, translators, security bug fixers, and the like. I agree that license violators should not get any special consideration, but that has always been a strawman in choice-of-venue discussions. (If we had a lawsuit oracle that correctly indicates whether a person has actually committed a wrong, lawsuit costs would be negligible.) Furthermore, I don't think the problem with this license is a problem with the license at all. It's that some people have a problem with the licensor. Since the GPL could just as easily be abused for harassment purposes (requiring proof of compliance for every copy delivered, or some nonsense like that), I think that this kind of thing should not be thought of as a DFSG issue. I and others have objected to choice of venue in licenses where the license writer did not have Adobe's history of harassing people who research or implement mechanisms that allow fair use of DRMed works. If anything, such a history provides stronger reason to be skeptical about that kind of license provision. As a procedural matter, the GPL could not be abused in that fashion, since a lawsuit must allege with specificity the tortious action. A plaintiff would have to identify at least one specific occasion where the defendant failed to comply with the license. Other instances would be subject to discovery. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Sat, Jan 28, 2006 at 04:01:30PM -0500, Raul Miller wrote: On 28 Jan 2006 11:32:08 -0500, Michael Poole [EMAIL PROTECTED] wrote: I submit that, under this logic, fees to execute software or create derivative works are free since they are not mentioned anyhere in the DFSG. The usual response to this is that Debian would be restricted in doing things like porting software, fixing bugs, and so forth. The SC and DFSG make no mention of those tasks, either. I think that people who use the software constitutes a relevant group of people for The license must not discriminate against any person or group of persons. On that line of reasoning, people who don't live in California are, too. But we both know how weak arguing on DFSG#5 tends to be. I think the traditional argument is that restrictions on *use* of the software indicate an EULA, since simple copyright can not, in theory, restrict the use of software obtained legally. This implies that any license that restricts use requires a click-through license. Their implementation requires strict restrictions on distribution, to ensure that all recipients agree to it, and that falls widely afoul of DFSG#1. I think people who don't use the software and people who violate the license terms do not constitute relevant groups of people. I think people the licensor alleges violate the license terms are, however. Furthermore, I don't think the problem with this license is a problem with the license at all. It's that some people have a problem with the licensor. I don't think anybody is claiming that choice of venue is only non-free for Adobe. I don't think Adobe would want to expose themselves to that kind of risk, so I think we can take this license at face value. Harrassing lawsuits are the extreme case. It's a similar problem with, for example, honest but incorrect claims. I don't see why the licensor should get to override the venue in *any* case where he's the one instigating the lawsuit. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/28/06, Glenn Maynard [EMAIL PROTECTED] wrote: Harrassing lawsuits are the extreme case. It's a similar problem with, for example, honest but incorrect claims. I don't see why the licensor should get to override the venue in *any* case where he's the one instigating the lawsuit. So what honest but incorrect claims does this license allow that could be problematic? In the sense of alleging specifc misbehavior. I'm just not seeing it. Thanks, -- Raul
Re: Adobe open source license -- is this licence free?
Raul Miller writes: On 1/28/06, Glenn Maynard [EMAIL PROTECTED] wrote: Harrassing lawsuits are the extreme case. It's a similar problem with, for example, honest but incorrect claims. I don't see why the licensor should get to override the venue in *any* case where he's the one instigating the lawsuit. So what honest but incorrect claims does this license allow that could be problematic? In the sense of alleging specifc misbehavior. I'm just not seeing it. In the honest but incorrect claims case it requires fee-shifting from the mistaken plaintiff to the innocent defendant. These costs are significantly higher than they need be in the absence of a contractual choice of venue. (When the claims really are honest but incorrect in the US legal system, the defendant cannot recover costs. Other countries vary.) Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Sat, Jan 28, 2006 at 09:32:12PM -0500, Raul Miller wrote: On 1/28/06, Glenn Maynard [EMAIL PROTECTED] wrote: Harrassing lawsuits are the extreme case. It's a similar problem with, for example, honest but incorrect claims. I don't see why the licensor should get to override the venue in *any* case where he's the one instigating the lawsuit. So what honest but incorrect claims does this license allow that could be problematic? In the sense of alleging specifc misbehavior. I meant: not only does this give the advantage to the accuser in the case of deliberate, hostile legal action, but also in the case of reasonable legal action where the accused licensee wasn't actually at fault. I'm just not seeing it. I'm just not seeing the defensibility of any lawsuits we instigate will be tried on our home turf, regardless of motives or the eventual outcome. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/29/06, Glenn Maynard [EMAIL PROTECTED] wrote: On that line of reasoning, people who don't live in California are, too. But we both know how weak arguing on DFSG#5 tends to be. I think the traditional argument is that restrictions on *use* of the software indicate an EULA, since simple copyright can not, in theory, restrict the use of software obtained legally. This implies that any license that restricts use requires a click-through license. Their implementation requires strict restrictions on distribution, to ensure that all recipients agree to it, and that falls widely afoul of DFSG#1. I think DFSG#5 was written not because of this, but because of licenses that exclude some uses of the software, e.g. nuclear weapons factories, animal torture and things that people dislike. The choice of venue clause is a minor discrimination, and not one which I think deserves so much attention. andrew -- Andrew Donnellan http://andrewdonnellan.com http://ajdlinux.blogspot.com Jabber - [EMAIL PROTECTED] --- Member of Linux Australia - http://linux.org.au Debian user - http://debian.org Get free rewards - http://ezyrewards.com/?id=23484 OpenNIC user - http://www.opennic.unrated.net
Re: Adobe open source license -- is this licence free?
On Sun, Jan 29, 2006 at 03:18:32PM +1100, Andrew Donnellan wrote: On 1/29/06, Glenn Maynard [EMAIL PROTECTED] wrote: I think the traditional argument is that restrictions on *use* of the software indicate an EULA, since simple copyright can not, in theory, restrict the use of software obtained legally. This implies that any license that restricts use requires a click-through license. Their implementation requires strict restrictions on distribution, to ensure that all recipients agree to it, I think DFSG#5 was written not because of this, but because of licenses that exclude some uses of the software, e.g. nuclear weapons factories, animal torture and things that people dislike. and that falls widely afoul of DFSG#1. ^^ -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/28/06, Glenn Maynard [EMAIL PROTECTED] wrote: On Sat, Jan 28, 2006 at 09:32:12PM -0500, Raul Miller wrote: On 1/28/06, Glenn Maynard [EMAIL PROTECTED] wrote: Harrassing lawsuits are the extreme case. It's a similar problem with, for example, honest but incorrect claims. I don't see why the licensor should get to override the venue in *any* case where he's the one instigating the lawsuit. So what honest but incorrect claims does this license allow that could be problematic? In the sense of alleging specifc misbehavior. I meant: not only does this give the advantage to the accuser in the case of deliberate, hostile legal action, but also in the case of reasonable legal action where the accused licensee wasn't actually at fault. I'm just not seeing it. I'm just not seeing the defensibility of any lawsuits we instigate will be tried on our home turf, regardless of motives or the eventual outcome. 1) what lawsuits does this provide for that something else (GPL? BSD?) wouldn't also allow? 2) The contract does not state that the decisions must be made in California. It says that the dispute must be brought to a CA court, but does not require that it remain there. If there's good reason for it to be resolved elsewhere (which would be the case in a specious lawsuit), this clause shouldn't be a problem. For that matter, this clause kicks in only for legal actions related to the license. A specious action is not going to be related to the license. Beyond that: if Adobe files in a CA court, even without this clause a person is still going to have to deal with that situation somehow. And if the action is specious, the person can simply dispute that the license is relevant to the action. A court would only issue a summary judgement where there is no valid dispute. In the case of a specious lawsuit, that means that the summary judgement would most likely be against Adobe (and a slight chance that the court wouldn't recognize the action as specious and would treat it as fair dispute). So in the context of harassment, either the court would rule that it's harassment (with all that implies) or would rule that the relevance of the license is in dispute (and thus the dispute does not need to be tried in CA at least until the dispute is resolved). If you think differently, please give a specific example of how this would work -- it's easy to say that's not going to work, but if there's nothing specific in your argument it's hard to say what you really mean. Thanks, -- Raul
Re: Adobe open source license -- is this licence free?
More pain to plonked Miller and other FSF's lackeys. On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: Just to stress... On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Raul Miller [EMAIL PROTECTED] wrote: On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] And licensing software is not selling it. Yorick, Yorick. The courts disagree. And then quotes as proof a huge chunk of text which includes the explanation: A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange. In other words: when money changes hand in the sale of software, it's fair to say that the person getting the software has been sold a licensed copy of that software (at least, when the sale is legal). This shouldn't be very surprising. Many books get published under an all rights reserved license, but the people who buy those books are still allowed to turn around and transfer the copy to someone else. A person could even say that the economic realities of the exchange are different when no money moves from the recipient of the software to the copyright holder. Hey plonked Miller, gratis copies also fall under the first sale (for which the trigger is nothing but ownership of a particular copy or phonorecord lawfully made). But anyway, http://www.gnu.org/philosophy/selling.html. Kuh-kuh. Go read 17 USC in its entirety (hello as a whole-in-the-GPL hello) including section 109. 106(3) is severely limited by the exception to 106(3) in section 109. The reason why 106(3) is listed in 106 is to provide legal basis to punish not only somebody who pirates works and who may not even try or want to distribute pirated copies, but also somebody who distributes pirated copies to the public that were unlawfully made by another. Now, plonked Miller, you tell me how does that apply to the GPL. Neither RMS nor Moglen can explain it. Perhaps you can. I doubt it. Here's what the author of http://digital-law-online.info/lpdi1.0/treatise2.html (I mean his treatise, not the Foreword written by the Chief Judge and the Chief Intellectual Property Counsel to the Senate Judiciary Committee) who worked with the Chief Judge and the Chief Intellectual Property Counsel to the Senate Judiciary Committee on Internet, copyright, and patent issues as a Committee Fellow had to say about the GNU legal nonsense version 3. comment 388: Not a correct statement of copyright law Regarding the text: However, nothing else grants you permission to propagate or modify the Program or any covered works. In section: gpl3.notacontract.p0.s3 Submitted by: hollaar comments: This is not a correct statement of copyright law, at least in the United States. With respect to propagate, it is likely a tautology because of the defintion of propagate covering only things that require permission under applicable copyright law. But for modify, 17 U.S.C. 117 permits the owner of a copy of a computer program to make an adaptation in particular circumstances, and makes it clear that making that adaptation does not infringe copyright if you do not accept this License. It also does not seem to recognize the first sale doctrine codified in 17 U.S.C. 109, that permits the transfer of a lawfully-made copy without the authority of the copyright owner. Perhaps the interplay between the definition of propagate and this section covers it, but it is certainly not made clear and, in fact, misleads one in thinking that the only way to redistribute a lawful copy is to accept the License. noted by hollaar comment 389: Not a correct statement Regarding the text: You may not propagate, modify or sublicense the Program except as expressly provided under this License. In section: gpl3.termination.p0.s1 Submitted by: hollaar comments: As I noted in more detail in my comments on Paragraph 9, this is not an accurate statement. In the United States, 17 U.S.C. 109 (first sale) and 117 (computer programs) allow the owner of a lawfully-made copy to modify it in certain circumstances and to redistribute it without permission of the copyright owner. noted by hollaar comment 390: Permission may not be required for use Regarding the text: which means permission for use In section: gpl3.licensecompat.p6.s1 Submitted by: hollaar comments: In the United States, at least, permission may not be required to use a computer program if the user is the lawful owner of a copy. See 17 U.S.C. 117. United States copyright law does not give
Re: Adobe open source license -- is this licence free?
Glenn Maynard [EMAIL PROTECTED] writes: On Thu, Jan 26, 2006 at 11:42:22AM +1100, Andrew Donnellan wrote: On 1/26/06, Francesco Poli [EMAIL PROTECTED] wrote: In a nutshell, this choice of venue discriminates against people who live far away from Santa Clara County, California, USA and thus fail DFSG#5. Those people can be forced to travel around the planet in order to defend themselves in a dispute raised by the copyright holder. I think this is using the discrimination bit far too broadly. I think it's important to avoid over-using that clause of the DFSG, as it's very easy to reword almost anything you don't like as discrimination. E.g., the GPL discriminates against those who want to take software proprietary. The BSD licenses discriminate against those who have a debilitating phobia of the letters BSD. Personally I think choice of venue clauses are reasonable, because it only discriminates against those who have broken the license. No, it discriminates against those who Adobe claims have broken the license. That's completely different. Adobe can harass people by claiming they broke the license without choice of venue clauses. What difference does it make that you have to buy an airplane ticket (or maybe just your lawyer does, I don't know -- maybe you can just hire a local lawyer), if you're already having to pay your legal fees and hire a lawyer? Also I don't think Adobe is going to sue you for a minor violation. This is called the tentacles of evil test: the license must be free, even if the copyright holder becomes hostile. Even if the copyright holder has an upstanding legal reputation, the license can't depend on that; copyright and companies can change hands. Yes, but (as you point out in your pine example) that can happen regardless of license. There are some things we simply can't protect against. The argument against choice-of-venue that I've heard is that it might be a choice that has strange or restrictive law that heavily favors the copyright holder. As far as I know (and I haven't read the whole thread) no one's making that argument about California. And to a certain extent, a nations laws always are able to remove freedoms that free software would like to permit, and there's not a lot we can do about it. Let's not tilt at windmills here. -- Jeremy Hankins [EMAIL PROTECTED] PGP fingerprint: 748F 4D16 538E 75D6 8333 9E10 D212 B5ED 37D0 0A03 -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Michael Poole [EMAIL PROTECTED] writes: 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. In practice a nation's laws are irrelevant to the software's freedom, yes, though that practice could be tested by extreme examples. That's not because the law can't restrict those freedoms, though. It's because, practically speaking, we can't do anything about that, where we could possibly convince the licensor to change terms -- or we could simply use alternate software. This has come up in the past with respect to software patents, or the DMCA. But to make this relevant to the current thread, we also have no control over whether the licensor decides to file harassing suits (or suits *we* might find harassing, anyway). -- Jeremy Hankins [EMAIL PROTECTED] PGP fingerprint: 748F 4D16 538E 75D6 8333 9E10 D212 B5ED 37D0 0A03 -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Jeremy Hankins writes: Glenn Maynard [EMAIL PROTECTED] writes: This is called the tentacles of evil test: the license must be free, even if the copyright holder becomes hostile. Even if the copyright holder has an upstanding legal reputation, the license can't depend on that; copyright and companies can change hands. Yes, but (as you point out in your pine example) that can happen regardless of license. There are some things we simply can't protect against. Indeed, but we can refuse to make it easier for a malicious actor or more costly for their victims (where those victims become such by using Debian). The argument against choice-of-venue that I've heard is that it might be a choice that has strange or restrictive law that heavily favors the copyright holder. As far as I know (and I haven't read the whole thread) no one's making that argument about California. And to a certain extent, a nations laws always are able to remove freedoms that free software would like to permit, and there's not a lot we can do about it. Let's not tilt at windmills here. That would be the argument against choice-of-law clauses. The argument against choice-of-venue is that any licensor can drag a user into court in the licensor's preferred venue rather than a venue that the user would otherwise be subject to. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Steve Langasek [EMAIL PROTECTED] writes: Have you never heard of the concept of a SLAPP suit? The difference in cost to a corporation like Adobe with a standing legal team between me suing them in their home court and me suing them in my home court is negligible. The difference in cost to *me* between Adobe suing *me* in my home court vs. their home court is *not* negligible. The difference in cost to Adobe between bringing harrassment suits against 200 mirror operators separately in their respective jurisdictions, and bringing one suit against all two hundred in Adobe's home jurisdiction is *also* not negligible. For many folks -- and probably most people in the world -- the difference between being sued by Adobe in California and being sued by Adobe in their home jurisdiction is actually negligible. Perhaps not in terms of dollar amounts, but in terms of ability to pay, both are completely out of reach without help. Adobe is as capable of using harassing lawsuits to get their way without this clause as they are with it. So far, I haven't seen any arguments against this claim. Yes, harassing lawsuits are a problem for free software. And yes, ideally the clause would be written so that it only applies when Adobe is defending. But less-than-ideal licenses have been considered free before, and I think this case should be the same. Frankly, I find it amazing that even when such clauses are advanced by a corporation like Adobe, who has been a veritable *poster child* for corporate hostility to Free Software and the concept of a liberal IP regime, there are still people who don't get that this additional exposure is a loaded gun. Except it's not a loaded gun. The added exposure is the difference between practically infinite and practically infinite plus a large number. I.e., practically nothing. No, the big deal is about the risks *I* incur. Free Software isn't about making corporations feel good about giving their work away, it's not about giving them a vehicle for growing their company's mindshare, and it sure as hell isn't about seeing how many different ropes we can give copyright holders within the letter of the DFSG before one of them decides to hang us. It's about serving the needs of the *users* (being all of us) so that we're free to use, create, modify, and distribute. Absolutely. I don't see how a choice of venue clause can be accepted as free -- I certainly don't feel free reading it, and I wouldn't feel free exercising any of the usual Free Software rights under such a license. It may be that this doesn't follow directly from the DFSG, but if that's the case I believe it's an argument for fixing the DFSG, *not* for accepting as free a license that I would personally be wary of accepting out of fear of harrassing lawsuits the moment Adobe changed its mind about Free Software. My question is: is the risk of lawsuit harassment significantly greater due to the presence of a choice of venue clause? I think the answer is no. If as Nathanael points out the clause were rewritten to be strictly defensive, I would have no problem with it; but that's definitely not what we have here today. I agree that that would be better. -- Jeremy Hankins [EMAIL PROTECTED] PGP fingerprint: 748F 4D16 538E 75D6 8333 9E10 D212 B5ED 37D0 0A03 -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: Hey plonked Miller, gratis copies also fall under the first sale (for which the trigger is nothing but ownership of a particular copy or phonorecord lawfully made). You know, if you wrote stuff that made sense it would be more worthwhile talking with you. Since you seem unaware of the meaning of the word plonk, I figured maybe I should help you out: http://en.wikipedia.org/wiki/Plonk Plonk doesn't mean let's ignore the person's argument and then start posting harassing emails. Plonk means I'm putting this person in my kill file, which is why I'm not going to be able to react to what they write in the future. None of which explains why you're now talking about phonorecords, but I figure: maybe you're bored. -- Raul
Re: Adobe open source license -- is this licence free?
Michael Poole [EMAIL PROTECTED] writes: Jeremy Hankins writes: Yes, but (as you point out in your pine example) that can happen regardless of license. There are some things we simply can't protect against. Indeed, but we can refuse to make it easier for a malicious actor or more costly for their victims (where those victims become such by using Debian). We could, but does the DFSG require it? There are other, non-malicious reasons for choice-of-venue, as others have pointed out. The argument against choice-of-venue that I've heard is that it might be a choice that has strange or restrictive law that heavily favors the copyright holder. As far as I know (and I haven't read the whole thread) no one's making that argument about California. And to a certain extent, a nations laws always are able to remove freedoms that free software would like to permit, and there's not a lot we can do about it. Let's not tilt at windmills here. That would be the argument against choice-of-law clauses. The argument against choice-of-venue is that any licensor can drag a user into court in the licensor's preferred venue rather than a venue that the user would otherwise be subject to. Ah. I assumed (perhaps erroneously) that the choice of venue impacted the choice of law. I take it that the two issues are unrelated? -- Jeremy Hankins [EMAIL PROTECTED] PGP fingerprint: 748F 4D16 538E 75D6 8333 9E10 D212 B5ED 37D0 0A03 -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote: [...] Plonk doesn't mean let's ignore the person's argument and then What argument? Edwards has wasted enough time on you in the past and you still don't grok a simple fact that IP licenses are contracts which is not akin to lottery or other state permits (unless of course you happen to live together with Moglen in the GNU Republic where IP belongs to the state) and that Judge Saris' ruling is quite a proof of that concept. start posting harassing emails. Plonk means I'm putting this person in my kill file, which is why I'm not going to be able to react to what they write in the future. Obviously I didn't killfile you. I use that moniker to convey the idea that you're a Person with Little Or No Knowledge at least regarding copyrights and IP licensing. None of which explains why you're now talking about phonorecords, but I figure: maybe you're bored. Go tell this to the US Congress and US President, plonked Miller. http://www.bitlaw.com/source/17usc/109.html regards, alexander.
Re: Adobe open source license -- is this licence free?
Jeremy Hankins writes: Steve Langasek [EMAIL PROTECTED] writes: Have you never heard of the concept of a SLAPP suit? The difference in cost to a corporation like Adobe with a standing legal team between me suing them in their home court and me suing them in my home court is negligible. The difference in cost to *me* between Adobe suing *me* in my home court vs. their home court is *not* negligible. The difference in cost to Adobe between bringing harrassment suits against 200 mirror operators separately in their respective jurisdictions, and bringing one suit against all two hundred in Adobe's home jurisdiction is *also* not negligible. For many folks -- and probably most people in the world -- the difference between being sued by Adobe in California and being sued by Adobe in their home jurisdiction is actually negligible. Perhaps not in terms of dollar amounts, but in terms of ability to pay, both are completely out of reach without help. Adobe is as capable of using harassing lawsuits to get their way without this clause as they are with it. So far, I haven't seen any arguments against this claim. This is not about ability to pay damages; clearly, we should not make freeness decisions to help those who infringe a license. It is about defending against the suit itself, before any liability is determined. It is significantly easier to defend against a suit near you than one far away. For example, being in a local court makes it at least possible to represent yourself, and US courts (I have no knowledge of other court systems) go out of their way to help those who cannot afford to hire lawyers. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: What argument? http://lists.debian.org/debian-legal/2006/01/msg00475.html Plonk means I'm putting this person in my kill file ... Obviously I didn't killfile you. Ok. When your words don't mean what we understand, we won't understand your words. -- Raul
Re: Adobe open source license -- is this licence free?
On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote: On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: What argument? http://lists.debian.org/debian-legal/2006/01/msg00475.html Edwards has already explained it to you. A question of law is addressed by likelihood of success on that portion breach of contract claim that concerns its trademark (with another portion being breach of the GPL), by cure the breach (one just can't cure a copyright violation), by not applying (In any event, even if MySQL has shown a likelihood of success on these points...) the copyright standard with presumption of irreparable harm (and using contract standard instead), and etc. regards, alexander.
Re: Adobe open source license -- is this licence free?
Hey plonked Miller, breaking news... On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/27/06, Raul Miller [EMAIL PROTECTED] wrote: On 1/27/06, Alexander Terekhov [EMAIL PROTECTED] wrote: What argument? http://lists.debian.org/debian-legal/2006/01/msg00475.html Edwards has already explained it to you. A question of law is addressed by likelihood of success on that portion breach of contract claim that concerns its trademark (with another portion being breach of the GPL), by cure the breach (one just can't cure a copyright violation), by not applying (In any event, even if MySQL has shown a likelihood of success on these points...) the copyright standard with presumption of irreparable harm (and using contract standard instead), and etc. Wallace v FSF. REPLY BRIEF IN SUPPORT OF REASSERTED MOTION TO DISMISS: quote Plaintiff's mischaracterization of the GPL in his Response has no bearing on the resolution of the pending Motion to Dismiss because the Court can examine the GPL itself. [T]o the extent that the terms of an attached contract conflict with the allegations of the complaint, the contract controls. /quote regards, alexander.
Re: Adobe open source license -- is this licence free?
On Fri, 27 Jan 2006, Jeremy Hankins wrote: Steve Langasek [EMAIL PROTECTED] writes: The difference in cost to Adobe between bringing harrassment suits against 200 mirror operators separately in their respective jurisdictions, and bringing one suit against all two hundred in Adobe's home jurisdiction is *also* not negligible. Adobe is as capable of using harassing lawsuits to get their way without this clause as they are with it. So far, I haven't seen any arguments against this claim. The difference is that users of the software are forced to put themselves into a position that is worse[1] than the one they started with by virtue of using the software which is under this license. But less-than-ideal licenses have been considered free before, and I think this case should be the same. There are two separate arguments being made here: 1. Non-defensive venue clauses are not DFSG Free. 2. Non-defensive venue clauses are not something that a license in Debian should have even if they are DFSG Free. The ideality of a license doesn't really enter into it one way or another. Frankly, I find it amazing that even when such clauses are advanced by a corporation like Adobe, who has been a veritable *poster child* for corporate hostility to Free Software and the concept of a liberal IP regime, there are still people who don't get that this additional exposure is a loaded gun. Except it's not a loaded gun. The added exposure is the difference between practically infinite and practically infinite plus a large number. I.e., practically nothing. The difference is that in the no-venue clause case, you can generally argue from a position of lack of standing because the entity filing the suit can bring it in a locality that is in common. In the other case you first have to void the venue before you even get started. My question is: is the risk of lawsuit harassment significantly greater due to the presence of a choice of venue clause? I think the answer is no. Unfortunatly, that's not the question we're trying to address here. Try instead: Is the risk of having a harassment lawsuit that you can't get instantly dismmed on the grounds of lack of standing greater due to the presence of a choice of venue clause? Don Armstrong 1: I'm going to totally bypass the argument that venue clauses are often overridden, because that's a venue and circumstance dependant discussion. In the best case this clause becomes a no-op. -- If you have the slightest bit of intellectual integrity you cannot support the government. -- anonymous http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Fri, Jan 27, 2006 at 10:35:44AM -0500, Jeremy Hankins wrote: We could, but does the DFSG require it? This is backtracking the discussion: we've already been over this. Message-ID: [EMAIL PROTECTED] There are other, non-malicious reasons for choice-of-venue, as others have pointed out. There are non-malicious reasons for releasing software under completely proprietary licenses. Good intentions don't make a restriction more free. Ah. I assumed (perhaps erroneously) that the choice of venue impacted the choice of law. I take it that the two issues are unrelated? I believe choice of law is uncontroversially considered DFSG-free, as long as that choice of law doesn't actually cause the terms of the license to become non-free. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/27/06, Glenn Maynard [EMAIL PROTECTED] wrote: There are non-malicious reasons for releasing software under completely proprietary licenses. Good intentions don't make a restriction more free. Nor do bad intentions make a restriction non-free. What makes a restriction non-free is that it prevents some free use of the software. Adobe might go nuts and harrass people is independent of any license provision. There's also little or no evidence that changing this jurisdiction clause would make the software any more free, even if we hypothesize that someone crazy at Adobe is going to start harassing users of this software using specious court actions, starting next week. -- Raul
Re: Adobe open source license -- is this licence free?
On Fri, Jan 27, 2006 at 06:56:20PM -0500, Raul Miller wrote: On 1/27/06, Glenn Maynard [EMAIL PROTECTED] wrote: There are non-malicious reasons for releasing software under completely proprietary licenses. Good intentions don't make a restriction more free. Nor do bad intentions make a restriction non-free. Indeed, which is why we don't base our arguments upon intent, and which the tentacles of evil test fundamentally explains. Adobe might go nuts and harrass people is independent of any license provision. There's also little or no evidence that changing this jurisdiction clause would make the software any more free, even if we hypothesize that someone crazy at Adobe is going to start harassing users of this software using specious court actions, starting next week. There have been plenty of arguments why the choice of venue clause makes it easier and cheaper for Adobe to go nuts and harrass people, and I havn't seen a single argument why choice of venue shouldn't be restricted to claims made against the copyright holder. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Raul Miller writes: On 1/27/06, Glenn Maynard [EMAIL PROTECTED] wrote: There are non-malicious reasons for releasing software under completely proprietary licenses. Good intentions don't make a restriction more free. Nor do bad intentions make a restriction non-free. What makes a restriction non-free is that it prevents some free use of the software. There's little or no evidence that requiring creators of a derivative of some software to identify themselves would prevent a free use of the software. Does that mean the Dissident test is irrelevant? Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Fri, Jan 27, 2006 at 10:29:27PM -0500, Michael Poole wrote: Raul Miller writes: What makes a restriction non-free is that it prevents some free use of the software. There's little or no evidence that requiring creators of a derivative of some software to identify themselves would prevent a free use of the software. Does that mean the Dissident test is irrelevant? Well, it would prevent that. Free use implies not having to do unreasonable things, or agree to onerous terms. That's why both the dissident test and choice of venue are non-free. Raul's definition doesn't help one come to either conclusion, though. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Wed, Jan 25, 2006 at 11:50:54PM -0800, Steve Langasek wrote: Steve On Thu, Jan 26, 2006 at 11:37:14AM +0400, olive wrote: Steve If that is what you think, you must first have the DFSG changed *before* Steve declaring the license non-free. Steve Steve No, I must not do any such thing. And who are you to tell me I Steve must? Well, because if we all start adding stuf that aren't in the DFSG and say they are binding, this is going to be a tricky day. Steve As long as the DFSG is not changed the license remains DFSG-free. Steve Steve No. The DFSG are *guidelines*. These guidelines are *interpreted* by Steve Debian, in the person of the ftp team with debian-legal functioning in an Steve advisory capacity (... on a good day). There is nothing in the Social Steve Contract or DFSG that obliges us to distribute software just because the Steve novel way that the licensors found to screw users is one that the DFSG Steve doesn't address explicitly. quote 1. Debian will remain 100% free We provide the guidelines that we use to determine if a work is free in the document entitled The Debian Free Software Guidelines. *We promise that the Debian system and all its components will be free according to these guidelines*. We will support people who create or use both free and non-free works on Debian. We will never make the system require the use of a non-free component. /quote I agree it doesn't say we promise to distribute each and every piece of software that could fall into the guidelines' reach, but if we don't want to render the emphasized promise pointless, we do have to stick more or less closely to what the DFSG say when we treat things as free/non-free, otherwise we are blatantly misleading people. Interpreting the DFSG is one thing, adding stuff to them is another. -- Yorick signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
That is not totally correct. First, choice of venue clauses are, as a rule, totally legal. In all countries? Do you have any reference for that? Second, the judgement won't be directly enforceable in other countries, but in non-controversial cases (by controversial, I'm thinking Yahoo! and the like), it is quite easy to get a judgement called (in Europe anyway) an exequatur which renders a foreign judgement enforceable. So let's not dismiss such a clause as ineffective. I am not a lawyer and I wonder if this totally exact. Anyway even if you are right this will be confirmed by the foreign tribunal and if the issue is not controversial it is normal that you will condemned. In the specific case of the Adobe license, which basically let you do anything you want, I do not see how you can non controversially break the contract. olive Anyway even without this choice of venue, I do not see anything olive preventing Adobe from suing someone in an U.S. tribunal; so the argument olive is in my opinion fundamentally flawed. Now I agree with you on the fact that these clauses aren't all that problematic. Sure. In any case in case of a lawsuit; the cost of the lawyer will be infinitively more than the cost of the travel. The fact of being sued is terribly annoying; the choice of venue appear to be negligible. Debian legal has a tendency to declare non-free a lot of license while all other declare them free or open source (the open source movement has basically the same rule as Debian). The same people then say that is obvious by the DFSG or that anybody know that is non-free. Debian will lose its credibility if it goes on this way. It should focus on proprietary software and not on software which are free but have a license that is not exactly the ideal one. Both the FSF and the open source movement have understood this. Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Non-warranty clauses also override legal mechanisms to favor the copyright holder. So what? They don't impede the use you can make of the software. But they are uncomfortable, because should damage arise following use of the software, the user won't be indemnified. In these cases, non-warranty clauses undisputably harm users, likely more so than choice of venue clauses. Yet we (rightly) don't consider them non-free. The same reasoning should be applied to choice of venue clauses. Non-warranty clause are illegal in Europe. However the warranty applies only in the case of commercial transaction. I am not sure you can claim any warranty for a software that you have downloaded at no cost; wether it has a non-waranty clause or not. But it is true that if you sell a GPL software (or other free or non-free software); you must provides a warranty (at least in Europe). This warranty cover only what is normally expected for the software by a normal user: it does not say that you can sue the person who have sell you the software for any bugs it may contain. Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 12:04:07PM +0400, olive wrote: olive olive That is not totally correct. First, choice of venue clauses are, as a olive rule, totally legal. olive olive In all countries? Do you have any reference for that? I am certainly not going to state that it is true in all countries, that would be way too risky... As for my own (Belgium), it's textbook knowledge, and is confirmed by article 6, § 1 of the code of international private law quote Lorsque les parties, en une matière où elles disposent librement de leurs droits en vertu du droit belge, sont convenues valablement, pour connaitre des différends nés ou à naître à l'occasion d'un rapport de droit, de la compétence des juridictions belges ou de l'une d'elles, celles-ci sont seules compétentes. /quote The wording is actually a little flimsy, but understood as validating choice of venue clauses. For the US, you could have a look at http://en.wikipedia.org/wiki/Forum_selection_clause Now I do believe that certain US states don't enforce choice of venue clauses (Michigan I think, but don't quote me on that). It is also true that even when such clauses are valid *they can often be overriden if there is a good reason to*. Such good reasons are usually understood as being matters which are politically important to the courts (what in french we call d'ordre public), or, sometimes, sufficient ties to another forum. Let it be noted that seemingly alot of countries have such rules, but that doesn't mean they apply them most of the time. olive Second, the judgement won't be directly olive enforceable in other countries, but in non-controversial cases (by olive controversial, I'm thinking Yahoo! and the like), it is quite easy to olive get a judgement called (in Europe anyway) an exequatur which renders a olive foreign olive judgement enforceable. So let's not dismiss such a clause as ineffective. olive olive I am not a lawyer and I wonder if this totally exact. Anyway even if you olive are right this will be confirmed by the foreign tribunal and if the olive issue is not controversial it is normal that you will condemned. In the olive specific case of the Adobe license, which basically let you do anything olive you want, I do not see how you can non controversially break olive the contract. Well, I'm not going to go to lengths to detail every country, but here's the idea: if a foreign decision has respected the equivalent of due process, and isn't politically disturbing for the country in which enfocement is sought (again, think Yahoo!), it's usually easy to get it enforced. I would like to clarify my statement on the non-controversial bit. I didn't mean it as undisputable, but more as not politically connotated. So any decision without glaring political consequences in non-controversial in this sense. For an example of such rules, I can refer to article 22 of the aforementioned belgian code: quote Art. 22. § 1er. Une décision judiciaire étrangère exécutoire dans l'Etat où elle a été rendue est déclarée exécutoire en Belgique, en tout ou en partie, conformément à la procédure visée à l'article 23. Une décision judiciaire étrangère est reconnue en Belgique, en tout ou en partie, sans qu'il faille recourir à la procédure visée a l'article 23. Si la reconnaissance est invoquée de façon incidente devant une juridiction belge, celle-ci est compétente pour en connaître. La décision ne peut être reconnue ou déclarée exécutoire que si elle ne contrevient pas aux conditions de l'article 25. § 2. Toute personne qui y a intérêt ainsi que, en matière d'état d'une personne, le ministère public, peut faire constater, conformément à la procédure visée à l'article 23, que la décision doit être reconnue ou déclarée exécutoire, en tout ou en partie, ou ne peut l'être. § 3. Au sens de la présente loi : 1° le terme décision judiciaire vise toute décision rendue par une autorité exerçant un pouvoir de juridiction; 2° la reconnaissance établit pour droit ce qui a été décidé à l'étranger. \quote The procedure in article 23 is mainly formal, and the conditions of article 25 which allow enforcement to be denied are mainly political incompatibility, lack of due process of law, existence of possible appeals, etc. -- Yorick signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 12:12:55PM +0400, olive wrote: olive Non-warranty clause are illegal in Europe. However the warranty applies olive only in the case of commercial transaction. I am not sure you can claim olive any warranty for a software that you have downloaded at no cost; wether olive it has a non-waranty clause or not. But it is true that if you sell a olive GPL software (or other free or non-free software); you must provides a olive warranty (at least in Europe). This warranty cover only what is olive normally expected for the software by a normal user: it does not say olive that you can sue the person who have sell you the software for any bugs olive it may contain. Er, no. There is an automatic warranty in sales, but you can contractually dismiss it. And licensing software is not selling it. I do concede that that to which you refer is a common (but erreoneous) perception. The only tricky questions are that of gross misconduct of the licensor, which can only be dismissed by explicit provisions of a contract, and it is disputed whether or not clauses such as those found in the GPL and other free software licenses are specific enough. But basically apart from that they are valid. Having written pretty thoroughly about the subject, I have Belgian (and to a lesser extent, french) references galore if you wish. I can send you the article if it is of interest to you. -- Yorick signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 01:18:55AM -0500, Nathanael Nerode wrote: To be more specific, we generally consider choice-of-venue non-free when it applies to suits brought by the copyright holder (/licensor) against other people. It's free when it only applies to suits brought by other people against the copyright holder (/licensor). Glenn Maynard wrote: I think I agree, but I don't know of a license brought here that actually does this--I don't think it's been discussed. Know of any examples, so we can wave it around for a while and maybe conclude this for certain? Being able to give an alternative to a general choice of venue clause that is uncontroversially free might go a long way towards fixing the problem. Scottish Creative Commons license, attribution or attribution-sharealike. (Drafted with our assistance. And I believe 100% free. And in fairly plain English. I love this license.) Here's the attribution version: http://creativecommons.org/licenses/by/2.5/scotland/legalcode 6.5 This Licence is governed by the law of Scotland and the parties accept the exclusive jurisdiction of the Courts of Scotland to decide any action or claim directed against the Licensor. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 11:37:14AM +0400, olive wrote: If that is what you think, you must first have the DFSG changed *before* declaring the license non-free. As long as the DFSG is not changed the license remains DFSG-free. A lot of people in this list, declare free or non-free software licenses following the fact they like the license or not and then say that is obviously non-free by the DFSGL; while the DFSG does not in reality. Both the FSF and the open source movement (the later use the same rules as the DFSG) declare choice of venue free or open source. You seem unaware of the way the DFSG works. It is not a fixed set of rules, but a set of guidelines to determine freeness. The DFSG can easily be interpreted very narrowly or very broadly. You can read it as you can't do this set of things, but anything else is OK; or, you can read you can't restrict modification as a strict, hard-and-fast rule. Both of them fail badly. An overly narrow view would make it useless; it would allow you must slay a tiger bare-handed to use this software. An overly broad view would also make it useless; it would prohibit even permissive licenses (eg. the discrimination clauses in the DFSG can apply to just about anything). Debian takes neither extreme interpretation. Rather, it looks at a restriction and, employing human judgement, decides whether it's an acceptable one to Free Software. At a high level, the question is, with respect to the license, can I reasonably exercise the freedoms the DFSG requires? The answer for Steve is no; in order to exercise his freedoms, he has to agree to a condition that makes him feel legally threatened. The choice of venue clause is very clearly a restriction on modification, since accepting it is a condition to receiving permission to modify the software. The question isn't whether the DFSG covers that (it clearly does), but whether that condition is acceptable. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Yorick Cool wrote: On Thu, Jan 26, 2006 at 12:12:55PM +0400, olive wrote: olive Non-warranty clause are illegal in Europe. However the warranty applies olive only in the case of commercial transaction. I am not sure you can claim olive any warranty for a software that you have downloaded at no cost; wether olive it has a non-waranty clause or not. But it is true that if you sell a olive GPL software (or other free or non-free software); you must provides a olive warranty (at least in Europe). This warranty cover only what is olive normally expected for the software by a normal user: it does not say olive that you can sue the person who have sell you the software for any bugs olive it may contain. Er, no. There is an automatic warranty in sales, but you can contractually dismiss it. And licensing software is not selling it. I do concede that that to which you refer is a common (but erreoneous) perception. You can't contractually dismiss it in tne European Union. I have found for example the following reference: http://mineco.fgov.be/protection_consumer/councils/consumption/pdf_avis_2002/262.pdf It is well mention obligation de garantie (compulsory warranty). If you buy a CD at the local store; you have the two year warranty whatever the license on the CD claim. It is probably the person who have sell you the CD who must provide the warranty; not the author of the software. The only tricky questions are that of gross misconduct of the licensor, which can only be dismissed by explicit provisions of a contract, and it is disputed whether or not clauses such as those found in the GPL and other free software licenses are specific enough. But basically apart from that they are valid. Having written pretty thoroughly about the subject, I have Belgian (and to a lesser extent, french) references galore if you wish. I can send you the article if it is of interest to you. Yes I am interested (I am a French speaking belgian) Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Hi Yorick! You wrote: quote 1. Debian will remain 100% free We provide the guidelines that we use to determine if a work is free in the document entitled The Debian Free Software Guidelines. *We promise that the Debian system and all its components will be free according to these guidelines*. We will support people who create or use both free and non-free works on Debian. We will never make the system require the use of a non-free component. /quote I agree it doesn't say we promise to distribute each and every piece of software that could fall into the guidelines' reach, Exactly. It says: we won't distribute stuff that doesn't adhere to the guidelines. If, according to debian-legal and the ftp masters, choice of venue clauses are a violation of the guidelines, we can therefore not distribute them. but if we don't want to render the emphasized promise pointless, we do have to stick more or less closely to what the DFSG say when we treat things as free/non-free, otherwise we are blatantly misleading people. Interpreting the DFSG is one thing, adding stuff to them is another. So, how, according to you, does such a clause _not_ violate DFSG #5? -- Kind regards, ++ | Bas Zoetekouw | GPG key: 0644fab7 | || Fingerprint: c1f5 f24c d514 3fec 8bf6 | | [EMAIL PROTECTED], [EMAIL PROTECTED] | a2b1 2bae e41f 0644 fab7 | ++ -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 01:09:42PM +0400, olive wrote: olive Yorick Cool wrote: olive Er, no. There is an automatic warranty in sales, but you can contractually olive dismiss it. And licensing software is not selling it. I do concede olive that that to which you refer is a common (but erreoneous) perception. olive olive You can't contractually dismiss it in tne European Union. I have found olive for example the following reference: olive olive http://mineco.fgov.be/protection_consumer/councils/consumption/pdf_avis_2002/262.pdf olive olive It is well mention obligation de garantie (compulsory warranty). If olive you buy a CD at the local store; you have the two year warranty whatever olive the license on the CD claim. It is probably the person who have sell olive you the CD who must provide the warranty; not the author of the software. Beware, what you are citing is an opinion, and not the actual legal framework. But more importantly, it deals with consumer protection (la loi sur les pratiques du commerce du 14 juillet 1991 in Belgium), which, for various reasons which I explore in my article, is not applicable to software licenses. You are correct in your analysis of the warranty of the CD, but only insofar as you are talking about a warranty on the physical object, not on it's contents. Hence a vendor has to warranty that the CD has no scratches and so on, but does not warranty that the software on it is flawless. Again, I refer you to my article. I'm sending it to you privately. If anyone else is interested, send me a private mail (the article is in french). signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 11:23:53AM +0100, Yorick Cool wrote: Well I obviously agree. My point was that the proposed interpretation was drifting so far from the DFSG that it wasn't arguable that it wasn't an addition and not a mere interpretation. A license that says to modify this software, give me $50 is obviously non-free; it's an unacceptable restriction on modification. A license that says to do anything in this license, give me $50 is obviously no less so. Similarly, saying to get any of the permissions of this license, you must agree to the choice of venue is a restriction on modification (and distribution, and maybe use), just as much as if it had said to modify the software, you must agree to the terms the choice of venue. This isn't complicated or contrived; it just means you can't circumvent the DFSG by applying restrictions as conditions to the license as a whole instead of to specific activities. (This isn't an argument for choice of venue being non-free, just that it's clearly something covered by the DFSG.) Bas So, how, according to you, does such a clause _not_ violate DFSG #5? The main argument to which I adhere, is flatly that such clauses don't discriminate against people at all. Let's see, what does I don't like most arguments based in DFSG#5 and #6. It's easy to argue that a choice of venue for California discriminates against people not in California, but it's just as easy to argue that requiring credit discriminates against people who like to plagiarize. I think DFSG#5 and #6 are intended for eg. Americans may not use the software and the software may not be used for stem cell research. When a restriction is non-free, there are almost always better arguments to be found, unless the restriction actually is of the above forms and falls under the spirit of DFSG#5/6. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Steve Langasek wrote: On Thu, Jan 26, 2006 at 11:37:14AM +0400, olive wrote: If that is what you think, you must first have the DFSG changed *before* declaring the license non-free. No, I must not do any such thing. And who are you to tell me I must? I mean you have to; being not a native English speaker; I have used the word must in a wrong context; please forgive me. However I do not see *anything* in the DFSG which let think that choice of venue is non-free. Although I do not share this point of view; you might think that we should add a rule saying they are not free: this is a legitimate though. It is not legitimate however to declare them non-free just because you do not like it and then abusively say that it is non free according to DFSG. Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Yorick Cool writes: On Thu, Jan 26, 2006 at 01:21:10AM -0500, Glenn Maynard wrote: Glenn There are laws in place for determining the *appropriate* venue. If Glenn California really is the appropriate venue for the suit, as determined Glenn by the law, then that's fine. If the appropriate venue is Massachusetts, Glenn or somewhere else, then that's where it should be. Well then I fail to see the difference. I do not, as a rule, consider criteria determined by the law as better than criteria determined by the parties (or one of them). What's more, many national rules on choice of venue are of the form where the parties have remained silent on the question, the appropriate venue shall be FOO. Can you elaborate on FOO? At least in the US, a suitable forum is one that has personal jurisdiction over the defendant and subject matter jurisdiction over the claims. For copyright claims, that would be a federal circuit court where the defendant resides or has significant contacts (or where the alleged infringement occured, which is likely to be one of the above). So you can really say that contractual choices of venue are determined by the law. I guess they should suddenly become acceptable since you seem to consider that the law is always ok. Nonsense. The law allows me to charge someone $50 for the right to copy my software. That does not make a required $50 fee DFSG-free. More fundamentally, I fail to see how this discriminates against anybody. In every conceivable case, the law will determine one venue, and this one shall be detrimental to someone. Not because the law or the license is discriminating, but because geography is. This kind of clause doesn't change that fact in any way. The law will determine at least one venue for each suit, and that will vary by defendant and the particulars alleged in the suit. Setting venue by license discriminates against every defendant who is not normally subject to that venue, since it changes the rules for them in a potentially very costly way. In fact, many lawyers (me included) consider that in general, choice of venue clauses are good practice because they heighten the degree of predictability of the venue issue, which can be a real pain in the ... In general, charging money as part of a contract is good practice because common law contracts require a consideration to be enforceable, and money is an obvious form of consideration. That does not make it a good practice in free software. Now I agree that they feel uncomfortable in software licenses. But that doesn't necessarily make them non-free. Any lawsuit is uncomfortable, for a number of reasons, and that of the venue is *always* one of those reasons. This clause doesn't alter this fact for better or for worse. Choice of venue alters the burden to the better for the licensor and the worse for most people in the world, since it allows a lawsuit against them to be brought in a foreign jurisdiction. Glenn Choice of venue attempts to override this mechanism, to always favor the Glenncopyright holder. Non-warranty clauses also override legal mechanisms to favor the copyright holder. So what? They don't impede the use you can make of the software. But they are uncomfortable, because should damage arise following use of the software, the user won't be indemnified. In these cases, non-warranty clauses undisputably harm users, likely more so than choice of venue clauses. Yet we (rightly) don't consider them non-free. The same reasoning should be applied to choice of venue clauses. I claim that implied warranty also implies a purchase as the context for that warranty. It is foolish to expect that free software comes with a costly obligation on the part of Debian (or anyone else) to ensure it is fit for whatever purpose the user claims. Exposing authors or distributors to that kind of liability would severely hamper free software. As can be seen, default venue has not done so. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 08:26:52AM -0500, Michael Poole wrote: Michael Yorick Cool writes: Michael Michael On Thu, Jan 26, 2006 at 01:21:10AM -0500, Glenn Maynard wrote: Michael Glenn There are laws in place for determining the *appropriate* venue. If Michael Glenn California really is the appropriate venue for the suit, as determined Michael Glenn by the law, then that's fine. If the appropriate venue is Massachusetts, Michael Glenn or somewhere else, then that's where it should be. Michael Michael Well then I fail to see the difference. I do not, as a rule, consider Michael criteria determined by the law as better than criteria determined by Michael the parties (or one of them). What's more, many national rules on Michael choice of venue are of the form where the parties have remained Michael silent on the question, the appropriate venue shall be FOO. Michael Michael Can you elaborate on FOO? At least in the US, a suitable forum is one Michael that has personal jurisdiction over the defendant and subject matter Michael jurisdiction over the claims. 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. Michael So you Michael can really say that contractual choices of venue are determined by the Michael law. I guess they should suddenly become acceptable since you seem to Michael consider that the law is always ok. Michael 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. Michael Michael More fundamentally, I fail to see how this discriminates against Michael anybody. In every conceivable case, the law will determine one venue, Michael and this one shall be detrimental to someone. Not because the law or Michael the license is discriminating, but because geography is. This kind of Michael clause doesn't change that fact in any way. Michael 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. 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. Michael Now I agree that they feel uncomfortable in software licenses. But Michael that doesn't necessarily make them non-free. Any lawsuit is Michael uncomfortable, for a number of reasons, and that of the venue is Michael *always* one of those reasons. This clause doesn't alter this fact for Michael better or for worse. Michael 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!. Michael I claim that implied warranty also implies a purchase as the context Michael for that warranty. It is foolish to expect that free software comes Michael with a costly obligation on the part of Debian (or anyone else) to Michael ensure it is fit for whatever purpose the user claims. Exposing Michael authors or distributors to that kind of liability would severely Michael hamper free software. As can be seen, default venue has not Michael done so. 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? -- Yorick signature.asc
Re: Adobe open source license -- is this licence free?
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]
Re: Adobe open source license -- is this licence free?
On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] And licensing software is not selling it. Yorick, Yorick. The courts disagree. Adobe asserts that its license defines the relationship between Adobe and any third-party such that a breach of the license constitutes copyright infringement. This assertion is not accurate because copyright law in fact provides certain rights to owners of a particular copy. This grant of rights is independent from any purported grant of rights from Adobe. (2) Sale v. License (a) Historical Background Historically, the purpose of licensing computer program copy use was to employ contract terms to augment trade secret protection in order to protect against unauthorized copying at a time when, first, the existence of a copyright in computer programs was doubtful, and, later, when the extent to which copyright provided protection was uncertain. (See Rice Decl. ¶ 6.) Computer program copy use licensing continued after federal courts interpreted the Copyright Act to provide substantial protection for computer programs as literary works. (Id. at ¶ 7.) In Step-Saver Data Systets, Inc. v. Wise Technology, the Third Circuit examined the historical development of the use of licensing in the software industry and concluded that subsequent changes to the Copyright Act had rendered the need to characterize the transaction as a license largely anachronistic. 939 F.2d 91, 96 n.7 (3d Cir. 1991).10 10 The court in Step-Saver explained: When these form licenses were first developed for software, it was, in large part, to avoid the federal copyright law first sale doctrine . . . . Under this doctrine, one could purchase a copy of a computer program, and then 'Lease it or lend it to another without infringing the copyright on the program. . . . Consumers, instead of purchasing their own copy of the program, would simply rent a copy of the program, and duplicate it . . . . [S]oftware producers wanted to sue the companies that were renting the copies of the program to individual consumers, rather than the individual consumers. Th: first sale doctrine, though, stood as a substantial barrier to successful suit against these software rental companies, even nder a theory of contributory infringement. By characterizing the original transaction between the software producer and the software rental company as a license, rather than a sale, and by making the license personal and non-transferable, software producers hoped to avoid the reach of the first sale doctrine and to establish a basis in state contract law for suing the software rental companies directly. Questions remained, however, as to whether the use of state contract law to avoid the first sale doctrine would be preempted either by the federal copyright statute (statutory preemption) or by the exclusive constitutional grant of authority over copyright issues to the federal government (constitutional preemption). [Citations.] Congress recognized the problem, and, in 1990, amended the first sale doctrine as it applies to computer programs and phonorecords. [Citations.] As amended, the first sale doctrine permits only non-profit libraries and educational institutions to lend or lease copies of software and phonorecords. [citations.] (Under the amended statute, a purchaser of a copy of a copyrighted computer program may still sell his copy to another without the consent of the copyright holder.). 939 F.2d at 96, n.7. (b) Adobe Sells its Software ... A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange. Microsoft Corp. v. DAK Indus., 66 F.3d 1091 (9th Cir. 1995); United States v. Wise, 550 F.2d 1180 (9th Cir. 1977). In DAK, Microsoft and DAK entered into a license agreement granting DAK certain nonexclusive license rights to Microsoft's computer software. The agreement provided that DAK would pay a royalty rate per copy of computer software that it distributed. Subsequently, DAK filed a petition for bankruptcy, and failed to pay the final two out of a total of five installments. Microsoft filed a motion for the payment of an administrative expense, claiming that it should be compensated for DAK's post-bankruptcy petition use of the license agreement. On appeal, the Ninth Circuit held that the economic realities of the agreement indicated that it was a sale, not a license to use. Thus, Microsoft simply held an unsecured claim and not an administrative expense. The court found that the agreement was best characterized as a lump sum sale of software units to DAK,
Re: Adobe open source license -- is this licence free?
On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] Beware, what you are citing is an opinion, and not the actual legal framework. Yorick, Yorick. I suggest you go talk to Hoeren on software licensing in Europe. http://www.oii.ox.ac.uk/resources/feedback/OIIFB_GPL3_20040903.pdf The Prof. is no stranger. http://de.wikipedia.org/wiki/Thomas_Hoeren http://arbiter.wipo.int/domains/panel/profiles/hoeren.pdf MEMBERSHIP IN PROFESSIONAL BODIES Member/Vice President, German Association for Law and Informatics (DGRI); Member, Society for Computers and Law, U.K.; Member, German-Japanese Law Association, Hamburg and Tokyo; Co-editor Computer und Recht, Computer and Law, Cologne; Member, Institute for European Media law, Saarbrücken; Member, Editorial Board, Law, Computers and Artificial Intelligence, BNA's Electronic Information Policy and Law Report and EDI Law Review; Legal Advisor, European Commission/DG XIII, Legal Advisory Board on Information Technology; Co-editor, Multimedia und Recht, Munich; Member, Task Force Group on Intellectual Property Rights of the European Commission; Legal expert in several research projects commissioned by the European Commission/DG III (COPEARMS), DG XIII (MULTISOLUTION, EDIBOL, EDIPAY) and the DG XV; Member, Legal Advisory Board, DENIC, Frankfurt. AREAS OF SPECIALIZATION Intellectual Property law; Internet Regulation; Information Law; Unfair Competition Law; International Business Law. EXPERIENCE IN INTELLECTUAL PROPERTY Judge at the Court of Appeal in Düsseldorf within the Trademark Copyright Senate; Professor in Intellectual Property Law at the University of Muenster; Member, Task Force Group on Intellectual Property Law, European Commission/DG XIII. regards, alexander.
Re: Adobe open source license -- is this licence free?
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
Re: Adobe open source license -- is this licence free?
On 1/26/06, Steve Langasek [EMAIL PROTECTED] wrote: Have you never heard of the concept of a SLAPP suit? I've heard mention of the concept. Have you heard of 425.16? (It's visible at http://www.casp.net/cal425.html) Ok, I'm assuming that free software is in the public interest, but I don't think that's a difficult legal argument. And, yes, I'm aware that that's the law in california and that venu is something different, but I don't think a judge is going to want to violate that law even if the plantiff is trying to claim that it is irrelevant to the defendant. Frankly, I find it amazing that even when such clauses are advanced by a corporation like Adobe, who has been a veritable *poster child* for corporate hostility to Free Software and the concept of a liberal IP regime, there are still people who don't get that this additional exposure is a loaded gun. I like the analogy presented in one of the web articles I read on choice of venue -- legally it's more like a stray bullet than an aimed shot. I still see this more as an economic cost containment issue than a legal move, and so far the arguments about tentacles of evil haven't contained enough specifics to change my mind on that. If as Nathanael points out the clause were rewritten to be strictly defensive, I would have no problem with it; but that's definitely not what we have here today. Ok. I don't care about this distinction but I accept that you do. Thanks, -- Raul
Re: Adobe open source license -- is this licence free?
On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: On Thu, Jan 26, 2006 at 11:07:02AM -0500, Michael Poole wrote: [... blame geography ...] For the record: I agree with Yorick regarding venue. Poole is dead wrong as usual. regards, alexander.
Re: Adobe open source license -- is this licence free?
On 26 Jan 2006 11:07:02 -0500, Michael Poole [EMAIL PROTECTED] wrote: Yorick Cool writes: 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. Even free licenses discriminate against those who violate the license. For example, people have argued that since the GPL discriminates it's a non-free license. Discrimination alone isn't sufficient to make a license non-free. There has to be something about using the software freely that the license discriminates against for discrimination to make the software non-free. -- Raul
Re: Adobe open source license -- is this licence free?
On 1/26/06, olive [EMAIL PROTECTED] wrote: I am not at all convinced. First, I wonder if this choice of venue is legal. I think the question is not whether it's legal, but whether it's relevant. In some cases it is (for example, if someone takes action against Adobe based on that license), in some cases it won't be (for example, if someone takes action against Adobe for some other reason). If Adobe takes action against someone else for violating the license, the other party can dispute that the license... That said, on re-reading the clause in question, it's pretty clear that it's talking about choice of law. The way it's written it also seems to imply choice of venue, but ... well, here it is: 6. GOVERNING LAW AND JURISDICTION. This Agreement is governed by the statutes and laws of the State of California, without regard to the conflicts of law principles thereof. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. So the California anti-SLAPP is very clearly relevant in the context of this contract, and it doesn't really matter that the license says that Adobe will bring it's disputes to the courts of Santa Clara Count, CA. Even if the license didn't specify where Adobe brings its disputes, Adobe would be free to take its disputes there. Note also that the license doesn't say which judges get to resolve these disputes or even which judges get to hear them. In other words, I don't see anything here which violates the law. -- Raul
Re: Adobe open source license -- is this licence free?
On 1/26/06, Raul Miller [EMAIL PROTECTED] wrote: On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] And licensing software is not selling it. Yorick, Yorick. The courts disagree. And then quotes as proof a huge chunk of text which includes the explanation: A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange. In other words: when money changes hand in the sale of software, it's fair to say that the person getting the software has been sold a licensed copy of that software (at least, when the sale is legal). This shouldn't be very surprising. Many books get published under an all rights reserved license, but the people who buy those books are still allowed to turn around and transfer the copy to someone else. A person could even say that the economic realities of the exchange are different when no money moves from the recipient of the software to the copyright holder. Hey plonked Miller, gratis copies also fall under the first sale (for which the trigger is nothing but ownership of a particular copy or phonorecord lawfully made). But anyway, http://www.gnu.org/philosophy/selling.html. Kuh-kuh. regards, alexander.
Re: Adobe open source license -- is this licence free?
Yorick Cool writes: 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. It should be quite plain that the license has nothing to do with that imposition. 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.) I do not miss that point at all; I think that the default rules of law are preferable to the imposition of a forum selected by the licensor. 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. Again, this is not something imposed by the license. The fact that a license is mute as to human rights or being able to use cryptographic software does not mean that it is non-free in countries that neglect human rights or that outlaw cryptography. Quite simply, a free software license should not attempt to correct wrongs that exist outside of the software. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Just to stress... On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Raul Miller [EMAIL PROTECTED] wrote: On 1/26/06, Alexander Terekhov [EMAIL PROTECTED] wrote: On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: [...] And licensing software is not selling it. Yorick, Yorick. The courts disagree. And then quotes as proof a huge chunk of text which includes the explanation: A number of courts have held that the sale of software is the sale of a good within the meaning of Uniform Commercial Code. Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp., 929 F.2d 1147, 1150 (6th Cir. 1991). It is well-settled that in determining whether a transaction is a sale, a lease, or a license, courts look to the economic realities of the exchange. In other words: when money changes hand in the sale of software, it's fair to say that the person getting the software has been sold a licensed copy of that software (at least, when the sale is legal). This shouldn't be very surprising. Many books get published under an all rights reserved license, but the people who buy those books are still allowed to turn around and transfer the copy to someone else. A person could even say that the economic realities of the exchange are different when no money moves from the recipient of the software to the copyright holder. Hey plonked Miller, gratis copies also fall under the first sale (for which the trigger is nothing but ownership of a particular copy or phonorecord lawfully made). But anyway, http://www.gnu.org/philosophy/selling.html. Kuh-kuh. Go read 17 USC in its entirety (hello as a whole-in-the-GPL hello) including section 109. 106(3) is severely limited by the exception to 106(3) in section 109. The reason why 106(3) is listed in 106 is to provide legal basis to punish not only somebody who pirates works and who may not even try or want to distribute pirated copies, but also somebody who distributes pirated copies to the public that were unlawfully made by another. Now, plonked Miller, you tell me how does that apply to the GPL. Neither RMS nor Moglen can explain it. Perhaps you can. I doubt it. regards, alexande
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 01:45:33PM -0500, Michael Poole wrote: Michael Yorick Cool writes: Michael Michael If the default rules of law force you to accept a lawsuit brought upon Michael you in New York, then a license with no choice of venue clause very Michael much does force you to go to NY if you don't want to. Michael Michael It should be quite plain that the license has nothing to do with that Michael imposition. It should be obvious that the silence of a licence is an implicit acceptance of the legal effects of laws it could have rejected. Since it could have changed those effects, by not speaking, the licence is taking a positive stance. Just like the silence of non-copyleft licences on any conditions for redistribution are an important feature -- not a bug -- of those licences. What a licence does not say is as important as what it says, and should not be dismissed as something totally unconnected with the licence. Michael The critical point that you are missing is that when a license doesn't Michael state a rule on a particular point, the default rules of law are de Michael facto incorporated in it. Hence it is absurd to consider non-free a Michael license because of a clause which shall have an effect very much Michael comparable to what a license whith no such clause would Michael have. (Obviously, this only applies if we consider the silent Michael license as free.) Michael Michael I do not miss that point at all; I think that the default rules of law Michael are preferable to the imposition of a forum selected by the Michael licensor. And why is that, if the effects are the same? Is it just out of some kind of irrational hatred of licensors? You have failed to show any negative effects that come from the licences taking a stance on forum instead of not saying anything. Michael The fact that a Michael license is mute as to human rights or being able to use cryptographic Michael software does not mean that it is non-free in countries that neglect Michael human rights or that outlaw cryptography. Quite simply, a free Michael software license should not attempt to correct wrongs that exist Michael outside of the software. I totally agree. That is why I consider the burden imposed by forum rules, be they contractual (deriving from a license) or legal (deriving from a law) to be outside of the scope of free software to fix. They are wrongs (if indeed they are wrongs) which exist outside of the software as you put it. Which is why I don't want to make that question one which free software should address, and I don't view forum clauses as non-free. You are the one trying to fix something in this by rejecting these clauses. -- Yorick signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 01:45:33PM -0500, Michael Poole wrote: 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. Again, this is not something imposed by the license. The fact that a license is mute as to human rights or being able to use cryptographic software does not mean that it is non-free in countries that neglect human rights or that outlaw cryptography. Quite simply, a free software license should not attempt to correct wrongs that exist outside of the software. Well, I don't mind when they try to do that, if the attempt doesn't have negative side-effects. For example, in principle, I don't mind the anti-DMCA clauses. In practice, of course, they need to be scrutinized to be sure they don't have unintended negative consequences. It's those negative consequences that can make the license non-free. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 05:47:37PM -0500, Michael Poole wrote: Michael If the laws governing default fora are flawed, please fix those laws. Very well. I am now off to fix the laws of every country in the world. I will tell legislators that it is because any other conduct might mean that a few posters on Debian-legal feel those laws unfairly discriminate agaisnt people in different geographic locations. While I'm at it, I'll also invent teletransportation, so that people in other countries will always easily access mine; so that they are not discriminated against. *shrugs* -- Yorick signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 10:31:25PM +0100, Yorick Cool wrote: It should be obvious that the silence of a licence is an implicit acceptance of the legal effects of laws it could have rejected. Since it could have changed those effects, by not speaking, the licence is taking a positive stance. Just like the silence of non-copyleft licences on any conditions for redistribution are an important feature -- not a bug -- of those licences. What a licence does not say is as important as what it says, and should not be dismissed as something totally unconnected with the licence. This would mean that any license that doesn't correct droit d'auteur, the DMCA, correct human rights violations, overrule laws preventing the development of cryptography, and disabling patents, is non-free, since in not trying to fix them, they're taking a positive stance? That's ridiculous. Michael The critical point that you are missing is that when a license doesn't Michael state a rule on a particular point, the default rules of law are de Michael facto incorporated in it. Hence it is absurd to consider non-free a Michael license because of a clause which shall have an effect very much Michael comparable to what a license whith no such clause would Michael have. (Obviously, this only applies if we consider the silent Michael license as free.) Michael Michael I do not miss that point at all; I think that the default rules of law Michael are preferable to the imposition of a forum selected by the Michael licensor. And why is that, if the effects are the same? Is it just out of some kind of irrational hatred of licensors? Unless the law says that the venue will be the home turf of the copyright holder in all cases, the effects *are not the same*. If the law says the venue is where the defendant lives, as someone claimed, then the law is clearly making a much more fair selection of venue than the license. If I sue Adobe, it goes to California; if they sue me, they come here. I have no problem with that. The license says even if we sue you, you come to California. That's the least fair selection of venue possible, with the defendant having to pack his bags and fly a couple thousand miles to face his accuser. You have failed to show any negative effects that come from the licences taking a stance on forum instead of not saying anything. We've explained the above a hundred times. Michael The fact that a Michael license is mute as to human rights or being able to use cryptographic Michael software does not mean that it is non-free in countries that neglect Michael human rights or that outlaw cryptography. Quite simply, a free Michael software license should not attempt to correct wrongs that exist Michael outside of the software. I totally agree. That is why I consider the burden imposed by forum rules, be they contractual (deriving from a license) or legal (deriving from a law) to be outside of the scope of free software to fix. They are wrongs (if indeed they are wrongs) which exist outside of the software as you put it. Which is why I don't want to make that question one which free software should address, and I don't view forum clauses as non-free. You are the one trying to fix something in this by rejecting these clauses. Uh, what? So now you're saying that any restriction in a software license that is outside of the software is irrelevant to freedom? A license that says you must apprehend a criminal is free? Sorry, but your arguments are becoming so strange and incomprehensible that I don't know how to respond to them, beyond expressing my bewilderment ... (No restriction *in the license of the software* is outside the software; when you say to have the right to use, copy and modify this program, you must agree to this condition, the condition immediately and obviously becomes Free Software's concern.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/26/06, Yorick Cool [EMAIL PROTECTED] wrote: On Thu, Jan 26, 2006 at 05:47:37PM -0500, Michael Poole wrote: Michael If the laws governing default fora are flawed, please fix those laws. Very well. I am now off to fix the laws of every country in the world. Take me, take me with you, oh please, Yorick. I will tell legislators that it is because any other conduct might mean that a few posters on Debian-legal feel those laws unfairly discriminate agaisnt people in different geographic locations. While I'm at it, I'll also invent teletransportation, Nah. Done already. Almost. http://www.research.ibm.com/quantuminfo/teleportation/ regards, alexander.
Re: Adobe open source license -- is this licence free?
On Thu, 26 Jan 2006 01:18:55 -0500 Nathanael Nerode wrote: On 1/25/06, Francesco Poli [EMAIL PROTECTED] wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). To be more specific, we generally consider choice-of-venue non-free when it applies to suits brought by the copyright holder (/licensor) against other people. It's free when it only applies to suits brought by other people against the copyright holder (/licensor). Yes, I agree. Thanks for clarifying what I wrote. I apologize for having not stated this so clearly. I don't know if you could get Adobe to change this, but you might actually be able to do so. Usually the writers of such licenses only really care about the free case, and haven't thought about the non-free case. Well, of course it's something that could be asked to Adobe... This is the only problem with the license as it applies to the code. (The documentation under the license is non-free because it can't be modified, of course.) Indeed. Poor documentation! Too often under a much more restrictive license than executable code! :-( -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgphsxSD7dbAV.pgp Description: PGP signature
Re: Adobe open source license -- is this licence free?
On Fri, Jan 27, 2006 at 12:34:13AM +0100, Yorick Cool wrote: Glenn Michael I do not miss that point at all; I think that the default rules of law Glenn Michael are preferable to the imposition of a forum selected by the Glenn Michael licensor. Glenn Glenn And why is that, if the effects are the same? Is it just out of some Glenn kind of irrational hatred of licensors? Glenn Glenn Unless the law says that the venue will be the home turf of the copyright Glenn holder in all cases, the effects *are not the same*. It is very much possible that such is the case in some venues. In fact, I have a feeling it is the case somewhere, but I can't remember off the top of my head where. The only way the effects could be the same is if they were the same in *all* jurisdictions. Otherwise, it's not the same. The thing you keep missing and refusing to answer is that in the real world, there are laws saying approximately everything that is possible. So by default, some licensees will have to fly to California, and some won't. That is not an optimal solution. The situation with a choice of venue is not optimal either. Hence, nothing really distinguishes them enough to consider one situation as free and the other as non-free. Choice of venue is replacing the not optimal situation with the worst possible case; rather than only some people being forced to deal with a far-away jurisdiction, now every defendant has to. I don't see how that's an improvement. If it is a condition to enjoy the use of the software, then no. But in case you didn't notice, you don't have to fly to California to enjoy the software with the choice of venue clause. Agreeing to the condition--the choice of venue--is a condition to receive the license to the software. If you don't agree to the choice of venue, then you don't get the license. Any condition to receiving the license is a restriction on the permissions granted by that license, making choice of venue very much encompassed by the DFSG and within the scope of Free Software's concern. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/27/06, Glenn Maynard [EMAIL PROTECTED] wrote: [...] Agreeing to the condition--[whatever]--is a condition to receive the license to the software. Well, the GPLv3, for example, elaborates on GPLv2 section 5 (go read its first statement) and says that You are not required to accept this License in order to receive a copy of the Program. If you don't agree to the [whatever], then you don't get the license. True. You just get a copy of software. Without a license. Must be a felony in the GNU Republic. regards, alexander.
Re: Adobe open source license -- is this licence free?
You may not modify the Documentation. Means the docs are non-free. 6. GOVERNING LAW AND JURISDICTION. This Agreement is governed by the statutes and laws of the State of California, without regard to the conflicts of law principles thereof. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. These clauses have been very problematic before. What do others think? My quick look suggests that the software is Free, the documentation isn't, but there could be problems with choice of law. andrew On 1/26/06, Achim Bohnet [EMAIL PROTECTED] wrote: [Please cc to me and Gilles] Hi, digikam developers would like to use Adobes XMP standard and reference implementation to handle image meta data. http://www.adobe.com/products/xmp/main.html They would like to make sure that the license is okay with debian before they start using it. If the license if not okay, they have to find other solution (or implement their own version from the spezification) I've appended the license used in the source of the reference implementation that can be found at: http://partners.adobe.com/public/developer/en/xmp/sdk/xmp-sdk.zip the copyright and license notice in the source code looks like // = // Copyright 2005 Adobe Systems Incorporated // All Rights Reserved. // // NOTICE: Adobe permits you to use, modify, and distribute this file in accordance with the terms // of the Adobe license agreement accompanying it. // = Looks okay for me, but we would like to make sure and not run into a bad surprise to be rejected from NEW because of license issues. Thx, Achim -- To me vi is Zen. To use vi is to practice zen. Every command is a koan. Profound to the user, unintelligible to the uninitiated. You discover truth everytime you use it. ADOBE SYSTEMS INCORPORATED OPEN SOURCE LICENSE NOTICE TO USER: Adobe Systems Incorporated is providing the Software and Documentation for use under the terms of this Agreement. Any use, reproduction, modification or distribution of the Software or Documentation, or any derivatives or portions thereof, constitutes your acceptance of this Agreement. As used in this Agreement, Adobe means Adobe Systems Incorporated. Software means the software code accompanying this Agreement. Documentation means the documents, specifications and all other items accompanying this Agreement other than the Software. 1. LICENSE GRANTSubject to the terms of this Agreement, Adobe hereby grants you a non-exclusive, worldwide, royalty free license to use, reproduce, prepare derivative works from, publicly display, publicly perform, distribute and sublicense the Software for any purpose, provided the copyright notice below appears in a conspicuous location within the source code of the distributed Software and this license is distributed in the supporting documentation of the Software you distribute. Copyright (date here) Adobe Systems Incorporated and others. All rights reserved. The original version of this source code may be found at http://adobe.com. Subject to the terms of this Agreement, Adobe hereby grants you a non-exclusive, worldwide, royalty free license to use, reproduce, publicly display, publicly perform, distribute and sublicense the Documentation for any purpose. You may not modify the Documentation. No title to the intellectual property in the Software or Documentation is transferred to you under the terms of this Agreement. You do not acquire any rights to the Software or the Documentation except as expressly set forth in this Agreement. If you choose to distribute the Software in a commercial product, you do so with the understanding that you agree to defend, indemnify and hold harmless Adobe against any losses, damages and costs arising from the claims, lawsuits or other legal actions arising out of such distribution. You may distribute the Software in object code form under your own license, provided that your license agreement: (a) complies with the terms and conditions of this license agreement; (b) effectively disclaims all warranties and conditions, express or implied, on behalf of Adobe; (c) effectively excludes all liability for damages on behalf of Adobe; (d) states that any provisions that differ from this Agreement are offered by you alone and not Adobe; and (e) states that the Software is available from you or Adobe and informs licensees how to obtain it in a
Re: Adobe open source license -- is this licence free?
On Wed, 25 Jan 2006 23:30:32 +0100 Achim Bohnet wrote: You may not modify the Documentation. As already pointed out by Andrew Donnellan, Documentation is non-free: it actually fails DFSG#3. [...] 6. GOVERNING LAW AND JURISDICTION. [...] Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). In a nutshell, this choice of venue discriminates against people who live far away from Santa Clara County, California, USA and thus fail DFSG#5. Those people can be forced to travel around the planet in order to defend themselves in a dispute raised by the copyright holder. [...] MetadataFrameworkSDK.09.13.01_10:44 ADOBE SYSTEMS INCORPORATED LICENCE DE LOGICIEL LIBRE [...] There seem to be two versions of the license: one is drafted in English, the other in French. It is not clear to me which version is the official one. Or are they both official and any of them may be chosen, at the recipient's option? Since I'm not qualified to read French legalese, I cannot check if the two versions have indeed the exact same meaning (which is not easy to accomplish...). -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpFXVUn3EBCH.pgp Description: PGP signature
Re: Adobe open source license -- is this licence free?
On 1/25/06, Francesco Poli [EMAIL PROTECTED] wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). And some of us think it's reasonable. If Adobe is going to take legal action against someone else, they'll have to deal with the jurisdiction(s) where this someone else has a presence. There's some benefit to Adobe if that jurisdiction is willing to turn control of the case to the california courts, but that doesn't seem to have any direct relevance on software freedom. It's not like there are all that many things for Adobe to be taking action against someone else on here. The big deal here is that if someone sues Adobe, Adobe doesn't have to incur huge legal fees defending themselves. Since it's free software, why would they want to? Choice of venue, to me, means we're giving this away, and we don't want to have to pay big legal fees because of that. No one has ever demonstrated any mechanism where choice of venue could prevent porting, security patches, enhancements or other such things. At least, not that I'm aware of. -- Raul
Re: Adobe open source license -- is this licence free?
On 1/26/06, Francesco Poli [EMAIL PROTECTED] wrote: On Wed, 25 Jan 2006 23:30:32 +0100 Achim Bohnet wrote: You may not modify the Documentation. As already pointed out by Andrew Donnellan, Documentation is non-free: it actually fails DFSG#3. [...] 6. GOVERNING LAW AND JURISDICTION. [...] Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). In a nutshell, this choice of venue discriminates against people who live far away from Santa Clara County, California, USA and thus fail DFSG#5. Those people can be forced to travel around the planet in order to defend themselves in a dispute raised by the copyright holder. Personally I think choice of venue clauses are reasonable, because it only discriminates against those who have broken the license. Also I don't think Adobe is going to sue you for a minor violation. [...] MetadataFrameworkSDK.09.13.01_10:44 ADOBE SYSTEMS INCORPORATED LICENCE DE LOGICIEL LIBRE [...] There seem to be two versions of the license: one is drafted in English, the other in French. It is not clear to me which version is the official one. Or are they both official and any of them may be chosen, at the recipient's option? Since I'm not qualified to read French legalese, I cannot check if the two versions have indeed the exact same meaning (which is not easy to accomplish...). Maybe the French translation is for Quebec, where I think French language is needed in legal documents. And no, I can't read French. I think this license is free enough for Software only, except everyone else seems to hate choice of venue clauses. andrew -- Andrew Donnellan http://andrewdonnellan.com http://ajdlinux.blogspot.com Jabber - [EMAIL PROTECTED] --- Member of Linux Australia - http://linux.org.au Debian user - http://debian.org Get free rewards - http://ezyrewards.com/?id=23484 OpenNIC user - http://www.opennic.unrated.net
Re: Adobe open source license -- is this licence free?
Raul Miller writes: On 1/25/06, Francesco Poli [EMAIL PROTECTED] wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). And some of us think it's reasonable. If Adobe is going to take legal action against someone else, they'll have to deal with the jurisdiction(s) where this someone else has a presence. Why do you say that? In The Bremen v. Zapata Offshore Co. (407 U.S. 1 (1972)), the US Supreme Court held that such [forum-selection] clauses are prima facie valid. In Carnival Cruise Lines, Inc. v. Shute (499 U.S. 585 (1991)), the Court explicitly extended this from negotiated contracts to include standard form contracts. Other countries have quite different rules for venue and jurisdiction. Unlike copyright, there are few international treaties on the subject. In the absence of information as to the effects in many places, it is somewhat hazardous to endorse licenses that set those rules aside. In terms of software freedoms, clauses not clearly related to software freedom are encumbrances that can easily turn into lawyerbombs. Question 12's subequestions h and p at [1] are particularly relevant. [1]- http://people.debian.org/~bap/dfsg-faq.html There's some benefit to Adobe if that jurisdiction is willing to turn control of the case to the california courts, but that doesn't seem to have any direct relevance on software freedom. It's not like there are all that many things for Adobe to be taking action against someone else on here. Adobe has attempted (with some success) to use copyright law -- especially the criminal portions of the DMCA -- to harass and hamper those who take advantage of weak copy protections in Adobe software. If Adobe's software had been open source, they would have even more basis for pursuing such claims, since Adobe could (perhaps reasonably) allege that prospective defendants had exercised license-controlled copy rights relating to Adobe's software, and that those actions subject the defendant to Adobe's preferred venue. (I specify Adobe because you did, but most large companies have taken or could conceivably take similar action. Think Tentacles of Evil.) The big deal here is that if someone sues Adobe, Adobe doesn't have to incur huge legal fees defending themselves. Since it's free software, why would they want to? Choice of venue, to me, means we're giving this away, and we don't want to have to pay big legal fees because of that. If a licensor want to avoid that, they should instead specify that suits naming the author(s) or licensor(s) as defendants must be filed in that venue, rather than specifying that all suits pertaining to the software must be filed in the venue. No one has ever demonstrated any mechanism where choice of venue could prevent porting, security patches, enhancements or other such things. At least, not that I'm aware of. I suspect that, to precisely the same extent, no one has ever demonstrated mechanisms where sending a postcard, petting a cat, identifying yourself or publishing modifications to third parties could prevent those things, either. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 25 Jan 2006 20:48:29 -0500, Michael Poole [EMAIL PROTECTED] wrote: Raul Miller writes: If Adobe is going to take legal action against someone else, they'll have to deal with the jurisdiction(s) where this someone else has a presence. Why do you say that? You pretty much answered your question: Other countries have quite different rules for venue and jurisdiction. Unlike copyright, there are few international treaties on the subject. ... Question 12's subequestions h and p at [1] are particularly relevant. [1]- http://people.debian.org/~bap/dfsg-faq.html This isn't a you must. No one is requiring that you sue Adobe, and suing Adobe isn't a normal part of anyone's use or development cycle. Nor is there anything significant here for Adobe to sue you about. Adobe has attempted (with some success) to use copyright law -- especially the criminal portions of the DMCA -- to harass and hamper those who take advantage of weak copy protections in Adobe software. DMCA is not relevant here. If Adobe's software had been open source, they would have even more basis for pursuing such claims, since Adobe could (perhaps reasonably) allege that prospective defendants had exercised license-controlled copy rights relating to Adobe's software, and that those actions subject the defendant to Adobe's preferred venue. We're talking about technological measures which enforce license provisions. If the license says anyone can freely own, modify and redistribute a copy of the software, what problem do we have with technology which enforces those license provisions? If there was some technological measures which conflicted with the copyright that would be a different story -- and it still wouldn't be a DMCA issue. Choice of venue, to me, means we're giving this away, and we don't want to have to pay big legal fees because of that. If a licensor want to avoid that, they should instead specify that suits naming the author(s) or licensor(s) as defendants must be filed in that venue, rather than specifying that all suits pertaining to the software must be filed in the venue. As it happens, it says that all suits pertaining to the license must be filed in the venue. Legal actions about the software which don't have anything do do with the license (perhaps: that adobe stole the software from SCO) aren't constrained by this clause. No one has ever demonstrated any mechanism where choice of venue could prevent porting, security patches, enhancements or other such things. At least, not that I'm aware of. I suspect that, to precisely the same extent, no one has ever demonstrated mechanisms where sending a postcard, petting a cat, identifying yourself or publishing modifications to third parties could prevent those things, either. You seem to be referring to clauses that restricted modification (with the exception of petting the cat, which I've never seen in any license). The choice of venue clause we are talking about here does not restrict modification. If there's some relevant problem here (something which is specific enough to be distinguished from FUD), we're not talking about it yet. -- Raul
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 11:42:22AM +1100, Andrew Donnellan wrote: On 1/26/06, Francesco Poli [EMAIL PROTECTED] wrote: In a nutshell, this choice of venue discriminates against people who live far away from Santa Clara County, California, USA and thus fail DFSG#5. Those people can be forced to travel around the planet in order to defend themselves in a dispute raised by the copyright holder. Personally I think choice of venue clauses are reasonable, because it only discriminates against those who have broken the license. No, it discriminates against those who Adobe claims have broken the license. That's completely different. Also I don't think Adobe is going to sue you for a minor violation. This is called the tentacles of evil test: the license must be free, even if the copyright holder becomes hostile. Even if the copyright holder has an upstanding legal reputation, the license can't depend on that; copyright and companies can change hands. They could, for example, interpret the license in an unexpected or contrived way (as, for example, UWash did with Pine), and sue users (which, for clarity, UW didn't do, AFAIK). In that case, choice of venue clauses may place an undue burden on licensees; even if the interpretation doesn't hold up in court, they have to travel to prove it. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
Raul Miller writes: On 25 Jan 2006 20:48:29 -0500, Michael Poole [EMAIL PROTECTED] wrote: Raul Miller writes: If Adobe is going to take legal action against someone else, they'll have to deal with the jurisdiction(s) where this someone else has a presence. Why do you say that? You pretty much answered your question: I cited US Supreme Court cases that held forum-selection clauses were valid, both against the author and acceptor of contracts, for both negotiated and standard form contracts. How does it follow that Adobe would have to pursue significant legal action in the defendant's jurisdiction? It is not easy to set aside a default judgment. Other countries have quite different rules for venue and jurisdiction. Unlike copyright, there are few international treaties on the subject. ... Question 12's subequestions h and p at [1] are particularly relevant. [1]- http://people.debian.org/~bap/dfsg-faq.html This isn't a you must. No one is requiring that you sue Adobe, and suing Adobe isn't a normal part of anyone's use or development cycle. Nor is there anything significant here for Adobe to sue you about. You must submit to this court's decisions sure seems like a you must to me. Would a waiver of jury trial or consent to binding arbitration through the licensor's cousin Bob be free restrictions? Adobe has attempted (with some success) to use copyright law -- especially the criminal portions of the DMCA -- to harass and hamper those who take advantage of weak copy protections in Adobe software. DMCA is not relevant here. Why not? It is a copyright law, and the traditional software freedoms have been about copyrights. If Adobe's software had been open source, they would have even more basis for pursuing such claims, since Adobe could (perhaps reasonably) allege that prospective defendants had exercised license-controlled copy rights relating to Adobe's software, and that those actions subject the defendant to Adobe's preferred venue. We're talking about technological measures which enforce license provisions. If the license says anyone can freely own, modify and redistribute a copy of the software, what problem do we have with technology which enforces those license provisions? Legal measures like forum selection clauses are not technological measures. Which technological measures are you talking about? If there was some technological measures which conflicted with the copyright that would be a different story -- and it still wouldn't be a DMCA issue. The DMCA included many more changes to the law than the effective control to copyrighted material clauses that get so much attention. It revised a rather large part of the Copyright Act. Choice of venue, to me, means we're giving this away, and we don't want to have to pay big legal fees because of that. If a licensor want to avoid that, they should instead specify that suits naming the author(s) or licensor(s) as defendants must be filed in that venue, rather than specifying that all suits pertaining to the software must be filed in the venue. As it happens, it says that all suits pertaining to the license must be filed in the venue. Legal actions about the software which don't have anything do do with the license (perhaps: that adobe stole the software from SCO) aren't constrained by this clause. This is a very different limitation than what I said. Suits pertaining to the license include suits that allege you or I or the Pope infringed the work's license or copyright. No one has ever demonstrated any mechanism where choice of venue could prevent porting, security patches, enhancements or other such things. At least, not that I'm aware of. I suspect that, to precisely the same extent, no one has ever demonstrated mechanisms where sending a postcard, petting a cat, identifying yourself or publishing modifications to third parties could prevent those things, either. You seem to be referring to clauses that restricted modification (with the exception of petting the cat, which I've never seen in any license). The choice of venue clause we are talking about here does not restrict modification. How does sending a postcard restrict modification? Clearly it is not a direct restriction; instead, it is an additional cost, but the DFSG do not address costs to modify the software. How does identifying yourself restrict modification? Again, it is not direct, but it can easily have a chilling effect, but the DFSG do not address chilling effects. Forum selection can have a chilling effect, and can be leveraged to an additional cost at the whim of a copyright owner. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). In a nutshell, this choice of venue discriminates against people who live far away from Santa Clara County, California, USA and thus fail DFSG#5. Those people can be forced to travel around the planet in order to defend themselves in a dispute raised by the copyright holder. I am not at all convinced. First, I wonder if this choice of venue is legal. You must be aware of the fact that any condemnation of US tribunal cannot have any effect outside of the U.S.; so if this person leave far away from the U.S, he can simply ignore any decision of an U.S. tribunal as long as he does not comes to the U.S. If someone is sued it is always very inconvenient for him whether he lives on the U.S. or not. In some case this choice of venue if even more avantageous for someone not living in the U.S. since only a U.S tribunal can sue him and the decision of this tribunal has no effect in his country. Anyway even without this choice of venue, I do not see anything preventing Adobe from suing someone in an U.S. tribunal; so the argument is in my opinion fundamentally flawed. The only thing that it really restrict is suing Adobe in another country; but that does not seem to be a problem. Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 09:23:03AM +0400, olive wrote: In a nutshell, this choice of venue discriminates against people who live far away from Santa Clara County, California, USA and thus fail DFSG#5. Those people can be forced to travel around the planet in order to defend themselves in a dispute raised by the copyright holder. I am not at all convinced. First, I wonder if this choice of venue is legal. If it's not legal, or not enforcable, that doesn't make it any less non- Free. If it's really known to be unenforcable, then the copyright holder should be willing to remove it from the license, and prevent the confusion (and misleading claims). Personally--speaking for my own particular case--I don't care about flying around the world; flying from Massachusetts to California is quite too far. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
If it's not legal, or not enforcable, that doesn't make it any less non- Free. If it's really known to be unenforcable, then the copyright holder should be willing to remove it from the license, and prevent the confusion (and misleading claims). The other argument is that even without this choice of venue; Adobe could sue you in a Californian tribunal (am I wrong?, what could prevent Adobe acting in this way); so I do not see what are more inconvinient with this choice of venue. Anyway the fact of being sued will cost you infinitively more (cost of the lawyer etc.) than the fly from Massachuset to California so that this argument seems doubly flawed. Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On 1/25/06, Francesco Poli [EMAIL PROTECTED] wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). To be more specific, we generally consider choice-of-venue non-free when it applies to suits brought by the copyright holder (/licensor) against other people. It's free when it only applies to suits brought by other people against the copyright holder (/licensor). I don't know if you could get Adobe to change this, but you might actually be able to do so. Usually the writers of such licenses only really care about the free case, and haven't thought about the non-free case. This is the only problem with the license as it applies to the code. (The documentation under the license is non-free because it can't be modified, of course.) -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 10:08:34AM +0400, olive wrote: If it's not legal, or not enforcable, that doesn't make it any less non- Free. If it's really known to be unenforcable, then the copyright holder should be willing to remove it from the license, and prevent the confusion (and misleading claims). The other argument is that even without this choice of venue; Adobe could sue you in a Californian tribunal (am I wrong?, what could prevent Adobe acting in this way); so I do not see what are more inconvinient with this choice of venue. There are laws in place for determining the *appropriate* venue. If California really is the appropriate venue for the suit, as determined by the law, then that's fine. If the appropriate venue is Massachusetts, or somewhere else, then that's where it should be. Choice of venue attempts to override this mechanism, to always favor the copyright holder. -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 01:18:55AM -0500, Nathanael Nerode wrote: To be more specific, we generally consider choice-of-venue non-free when it applies to suits brought by the copyright holder (/licensor) against other people. It's free when it only applies to suits brought by other people against the copyright holder (/licensor). I think I agree, but I don't know of a license brought here that actually does this--I don't think it's been discussed. Know of any examples, so we can wave it around for a while and maybe conclude this for certain? Being able to give an alternative to a general choice of venue clause that is uncontroversially free might go a long way towards fixing the problem. (I don't know enough about venue selection to know if countersuits are a problem; for example, if the result would be that when Company X sues me in my own venue, and I countersue, I have to take it up in an a completely different venue. I just don't know enough about venue selection to answer this case.) -- Glenn Maynard -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Wed, Jan 25, 2006 at 07:32:56PM -0500, Raul Miller wrote: On 1/25/06, Francesco Poli [EMAIL PROTECTED] wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). And some of us think it's reasonable. If Adobe is going to take legal action against someone else, they'll have to deal with the jurisdiction(s) where this someone else has a presence. There's some benefit to Adobe if that jurisdiction is willing to turn control of the case to the california courts, but that doesn't seem to have any direct relevance on software freedom. It's not like there are all that many things for Adobe to be taking action against someone else on here. Have you never heard of the concept of a SLAPP suit? The difference in cost to a corporation like Adobe with a standing legal team between me suing them in their home court and me suing them in my home court is negligible. The difference in cost to *me* between Adobe suing *me* in my home court vs. their home court is *not* negligible. The difference in cost to Adobe between bringing harrassment suits against 200 mirror operators separately in their respective jurisdictions, and bringing one suit against all two hundred in Adobe's home jurisdiction is *also* not negligible. Frankly, I find it amazing that even when such clauses are advanced by a corporation like Adobe, who has been a veritable *poster child* for corporate hostility to Free Software and the concept of a liberal IP regime, there are still people who don't get that this additional exposure is a loaded gun. The big deal here is that if someone sues Adobe, Adobe doesn't have to incur huge legal fees defending themselves. Since it's free software, why would they want to? No, the big deal is about the risks *I* incur. Free Software isn't about making corporations feel good about giving their work away, it's not about giving them a vehicle for growing their company's mindshare, and it sure as hell isn't about seeing how many different ropes we can give copyright holders within the letter of the DFSG before one of them decides to hang us. It's about serving the needs of the *users* (being all of us) so that we're free to use, create, modify, and distribute. I don't see how a choice of venue clause can be accepted as free -- I certainly don't feel free reading it, and I wouldn't feel free exercising any of the usual Free Software rights under such a license. It may be that this doesn't follow directly from the DFSG, but if that's the case I believe it's an argument for fixing the DFSG, *not* for accepting as free a license that I would personally be wary of accepting out of fear of harrassing lawsuits the moment Adobe changed its mind about Free Software. If as Nathanael points out the clause were rewritten to be strictly defensive, I would have no problem with it; but that's definitely not what we have here today. -- Steve Langasek Give me a lever long enough and a Free OS Debian Developer to set it on, and I can move the world. [EMAIL PROTECTED] http://www.debian.org/ signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 09:23:03AM +0400, olive wrote: olive olive This is a choice of venue and is considered non-free by many olive debian-legal contributors (including me...). olive olive In a nutshell, this choice of venue discriminates against people who olive live far away from Santa Clara County, California, USA and thus fail olive DFSG#5. Those people can be forced to travel around the planet in order olive to defend themselves in a dispute raised by the copyright holder. olive olive I am not at all convinced. First, I wonder if this choice of venue is olive legal. You must be aware of the fact that any condemnation of US olive tribunal cannot have any effect outside of the U.S. That is not totally correct. First, choice of venue clauses are, as a rule, totally legal. Second, the judgement won't be directly enforceable in other countries, but in non-controversial cases (by controversial, I'm thinking Yahoo! and the like), it is quite easy to get a judgement called (in Europe anyway) an exequatur which renders a foreign judgement enforceable. So let's not dismiss such a clause as ineffective. olive Anyway even without this choice of venue, I do not see anything olive preventing Adobe from suing someone in an U.S. tribunal; so the argument olive is in my opinion fundamentally flawed. Now I agree with you on the fact that these clauses aren't all that problematic. -- Yorick signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
Steve Langasek wrote: On Wed, Jan 25, 2006 at 07:32:56PM -0500, Raul Miller wrote: On 1/25/06, Francesco Poli [EMAIL PROTECTED] wrote: Any dispute arising out of or related to this Agreement shall be brought in the courts of Santa Clara County, California, USA. This is a choice of venue and is considered non-free by many debian-legal contributors (including me...). And some of us think it's reasonable. If Adobe is going to take legal action against someone else, they'll have to deal with the jurisdiction(s) where this someone else has a presence. There's some benefit to Adobe if that jurisdiction is willing to turn control of the case to the california courts, but that doesn't seem to have any direct relevance on software freedom. It's not like there are all that many things for Adobe to be taking action against someone else on here. Have you never heard of the concept of a SLAPP suit? The difference in cost to a corporation like Adobe with a standing legal team between me suing them in their home court and me suing them in my home court is negligible. The difference in cost to *me* between Adobe suing *me* in my home court vs. their home court is *not* negligible. The difference in cost to Adobe between bringing harrassment suits against 200 mirror operators separately in their respective jurisdictions, and bringing one suit against all two hundred in Adobe's home jurisdiction is *also* not negligible. Frankly, I find it amazing that even when such clauses are advanced by a corporation like Adobe, who has been a veritable *poster child* for corporate hostility to Free Software and the concept of a liberal IP regime, there are still people who don't get that this additional exposure is a loaded gun. The big deal here is that if someone sues Adobe, Adobe doesn't have to incur huge legal fees defending themselves. Since it's free software, why would they want to? No, the big deal is about the risks *I* incur. Free Software isn't about making corporations feel good about giving their work away, it's not about giving them a vehicle for growing their company's mindshare, and it sure as hell isn't about seeing how many different ropes we can give copyright holders within the letter of the DFSG before one of them decides to hang us. It's about serving the needs of the *users* (being all of us) so that we're free to use, create, modify, and distribute. I don't see how a choice of venue clause can be accepted as free -- I certainly don't feel free reading it, and I wouldn't feel free exercising any of the usual Free Software rights under such a license. It may be that this doesn't follow directly from the DFSG, but if that's the case I believe it's an argument for fixing the DFSG, *not* for accepting as free a license that I would If that is what you think, you must first have the DFSG changed *before* declaring the license non-free. As long as the DFSG is not changed the license remains DFSG-free. A lot of people in this list, declare free or non-free software licenses following the fact they like the license or not and then say that is obviously non-free by the DFSGL; while the DFSG does not in reality. Both the FSF and the open source movement (the later use the same rules as the DFSG) declare choice of venue free or open source. Olive -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 11:37:14AM +0400, olive wrote: If that is what you think, you must first have the DFSG changed *before* declaring the license non-free. No, I must not do any such thing. And who are you to tell me I must? As long as the DFSG is not changed the license remains DFSG-free. No. The DFSG are *guidelines*. These guidelines are *interpreted* by Debian, in the person of the ftp team with debian-legal functioning in an advisory capacity (... on a good day). There is nothing in the Social Contract or DFSG that obliges us to distribute software just because the novel way that the licensors found to screw users is one that the DFSG doesn't address explicitly. -- Steve Langasek Give me a lever long enough and a Free OS Debian Developer to set it on, and I can move the world. [EMAIL PROTECTED] http://www.debian.org/ signature.asc Description: Digital signature
Re: Adobe open source license -- is this licence free?
On Thu, Jan 26, 2006 at 01:21:10AM -0500, Glenn Maynard wrote: Glenn There are laws in place for determining the *appropriate* venue. If Glenn California really is the appropriate venue for the suit, as determined Glenn by the law, then that's fine. If the appropriate venue is Massachusetts, Glenn or somewhere else, then that's where it should be. Well then I fail to see the difference. I do not, as a rule, consider criteria determined by the law as better than criteria determined by the parties (or one of them). What's more, many national rules on choice of venue are of the form where the parties have remained silent on the question, the appropriate venue shall be FOO. So you can really say that contractual choices of venue are determined by the law. I guess they should suddenly become acceptable since you seem to consider that the law is always ok. More fundamentally, I fail to see how this discriminates against anybody. In every conceivable case, the law will determine one venue, and this one shall be detrimental to someone. Not because the law or the license is discriminating, but because geography is. This kind of clause doesn't change that fact in any way. In fact, many lawyers (me included) consider that in general, choice of venue clauses are good practice because they heighten the degree of predictability of the venue issue, which can be a real pain in the ... Now I agree that they feel uncomfortable in software licenses. But that doesn't necessarily make them non-free. Any lawsuit is uncomfortable, for a number of reasons, and that of the venue is *always* one of those reasons. This clause doesn't alter this fact for better or for worse. Glenn Choice of venue attempts to override this mechanism, to always favor the Glenncopyright holder. Non-warranty clauses also override legal mechanisms to favor the copyright holder. So what? They don't impede the use you can make of the software. But they are uncomfortable, because should damage arise following use of the software, the user won't be indemnified. In these cases, non-warranty clauses undisputably harm users, likely more so than choice of venue clauses. Yet we (rightly) don't consider them non-free. The same reasoning should be applied to choice of venue clauses. -- Yorick signature.asc Description: Digital signature
