subject:"Re\: CDDL, OpenSolaris, Choice\-of\-venue and the star package ..."

On Fri, Sep 09, 2005 at 12:00:54AM +0200, Marco d'Itri wrote:
 On Sep 08, Sven Luther [EMAIL PROTECTED] wrote:
 
   Indeed, the choice of venue is a fee argument is just that: an
   opinion which has at best no clear roots in the DFSG, therefore it
   cannot make a license non-free.
  Yeah, but there is certainly more than a single person arguing that we 
  should
  not distribute software with such licence.
 There is nothing wrong with this, and I'm not a fan of choice of venue
 clauses either, but they should try to modify the DFSG then.

Claiming this is only a single person arguing that, when i pointed him to a
50+ thread where more than 10 person participated, well, i don't know what you
think about lying and hypocricy, but i certainly find something wrong with it :)

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Josselin Mouette

Le vendredi 09 septembre 2005 à 00:41 +0200, Marco d'Itri a écrit :
 On Sep 09, Josselin Mouette [EMAIL PROTECTED] wrote:
 
   There is nothing wrong with this, and I'm not a fan of choice of venue
   clauses either, but they should try to modify the DFSG then.
  Could you explain why DFSG#5 couldn't be invoked in this case?
 It does not work this way. If you believe that a license is not free
 it's up to you explaining why.

Well, I'm explaining that it isn't free because of DFSG#5. However, it
seems that you are refusing such arguments de facto.
-- 
 .''`.   Josselin Mouette/\./\
: :' :   [EMAIL PROTECTED]
`. `'[EMAIL PROTECTED]
   `-  Debian GNU/Linux -- The power of freedom

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Thomas Bushnell BSG

Henning Makholm [EMAIL PROTECTED] writes:

 | The Covered Code is a commercial item, as that term is defined in
 | 48 C.F.R. 2.101 (Oct. 1995), consisting of commercial computer
 | software and commercial computer software documentation, as such
 | terms are used in 48 C.F.R. 12.212 (Sept.  1995). Consistent with 48
 | C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June
 | 1995), all U.S. Government End Users acquire Covered Code with only
 | those rights set forth herein.

 I have managed to find out what C.F.R. means and to locate the text
 of the referenced sections, completely without becoming wiser about
 what that text is supposed to achieve (and whether a private party
 *can* at all stipulate a different application of the U.S. federal
 administration's _internal_ purchasing regulations than would
 otherwise be used) ...

CFR means the Code of Federal Regulations, which are implementing
administrative rules (with the force of law) for statutes.  

In this case, the point is only about US Government End Users, a
specific category of users, and the provisions of US law which require
special copyright thingies to be said like this.  The private party
*can* make this stipulation, but only because the internal purchasing
regulations *grant* that right to private parties.

Also, CFR is not just internal purchasing regulations; the CFR has the
force of law about just about everything the regulatory state is
concerned with.  

You can read the text at http://www.law.cornell.edu/cfr/.

Thomas


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 01:41, Marco d'Itri wrote:
 On Sep 09, Josselin Mouette [EMAIL PROTECTED] wrote:
   There is nothing wrong with this, and I'm not a fan of choice of venue
   clauses either, but they should try to modify the DFSG then.
 
  Could you explain why DFSG#5 couldn't be invoked in this case?

 It does not work this way. If you believe that a license is not free
 it's up to you explaining why.

here they are:
http://lists.debian.org/debian-legal/2005/02/msg00037.html
http://lists.debian.org/debian-legal/2005/02/msg00038.html

of course left with no well-grounded substantiations or explanations it is 
other way around [1]:
http://www.opensolaris.org/jive/thread.jspa?threadID=2169tstart=0

I also think this breaches the Debian Social Contract#4, since you expose your 
users on baseless charges of license violation for no good reasons all over 
the world. Breaks We will place their interests first in our priorities.

These two make it dangerous and even worse than plain nonfree clear-worded 
license IMHO.

[1] claiming that Debian has already accepted cddl by having cddl'ed star is 
weak arg because it easily could be clasified as bug.

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Josselin Mouette [EMAIL PROTECTED]

 Well, I'm explaining that it isn't free because of DFSG#5. However, it
 seems that you are refusing such arguments de facto.

I doubt that people who do not wish to become legally bound to appear
at the the author's home court whenever he files a frivolous lawsuit
can be meaningfully described as a group of persons that can be
discriminated against. If everybody belongs to the group, is it
meaningfull to discriminate against it?

-- 
Henning Makholm   Larry wants to replicate all the time ... ah, no,
   all I meant was that he likes to have a bang everywhere.


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Marco d'Itri

On Sep 09, Josselin Mouette [EMAIL PROTECTED] wrote:

  It does not work this way. If you believe that a license is not free
  it's up to you explaining why.
 Well, I'm explaining that it isn't free because of DFSG#5. However, it
 seems that you are refusing such arguments de facto.
I am refusing them as long as you cannot clearly show how DFSG#5 forbids
some restrictions present in the CDDL.

-- 
ciao,
Marco


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Fri, Sep 09, 2005 at 11:46:04AM +0200, Marco d'Itri wrote:
 On Sep 09, Josselin Mouette [EMAIL PROTECTED] wrote:
 
   It does not work this way. If you believe that a license is not free
   it's up to you explaining why.
  Well, I'm explaining that it isn't free because of DFSG#5. However, it
  seems that you are refusing such arguments de facto.
 I am refusing them as long as you cannot clearly show how DFSG#5 forbids
 some restrictions present in the CDDL.

Marco, 

Remember the DFSG are guidelines, and it is ultimately to the responsability
of the ftp-masters to take a decision, based on the DFSG, sure, but also on
other consideration, as well as potential (legal) risk for our infrastructure,
mirror network, and daughter-distribs and end-users.

But then, it seems it is clear that the CDDL discriminates against any group
of persons not living in the juridiction (juridiction is the same as
choice-of-law, right ?) of the author suing them, or at least it seems clear
that this is the argumentation used here.

Now, this applies to choice of venue, not sure about choice of law,maybe too,
but to a lesser degree, since it is possible that the defendant will have more
trouble finding a lawyer familiar with the laws of a foreign juridiction.

Now, i wonder what law and venue are applicable if no such clause is present ?

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Henning Makholm writes:

 Scripsit Josselin Mouette [EMAIL PROTECTED]

 Well, I'm explaining that it isn't free because of DFSG#5. However, it
 seems that you are refusing such arguments de facto.

 I doubt that people who do not wish to become legally bound to appear
 at the the author's home court whenever he files a frivolous lawsuit
 can be meaningfully described as a group of persons that can be
 discriminated against. If everybody belongs to the group, is it
 meaningfull to discriminate against it?

Not everyone belongs to the group: In all cases to date (and likely
all cases in the future), some people would naturally be subject to
the court's jurisdiction.  As an example, the QPL discriminates
against everyone who does not live conveniently close to Olso.

Michael Poole


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Michael Poole [EMAIL PROTECTED]
 Henning Makholm writes:

 I doubt that people who do not wish to become legally bound to appear
 at the the author's home court whenever he files a frivolous lawsuit
 can be meaningfully described as a group of persons that can be
 discriminated against. If everybody belongs to the group, is it
 meaningfull to discriminate against it?

 Not everyone belongs to the group: In all cases to date (and likely
 all cases in the future), some people would naturally be subject to
 the court's jurisdiction.

Unless they have for some reason already decided conclusively that
they will never leave that jurisdiction and settle elsewhere, they are
still inconvenienced.

 As an example, the QPL discriminates against everyone who does not
 live conveniently close to Olso.

And against people who do live close to Oslo but may later contemplate
to move elsewhere.

-- 
Henning MakholmNej, hvor er vi altså heldige! Længe
  leve vor Buxgører Sansibar Bastelvel!

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Paul TBBle Hampson

On Fri, Sep 09, 2005 at 01:56:50PM +0200, Henning Makholm wrote:
 Scripsit Michael Poole [EMAIL PROTECTED]
 Henning Makholm writes:

 I doubt that people who do not wish to become legally bound to appear
 at the the author's home court whenever he files a frivolous lawsuit
 can be meaningfully described as a group of persons that can be
 discriminated against. If everybody belongs to the group, is it
 meaningfull to discriminate against it?

 Not everyone belongs to the group: In all cases to date (and likely
 all cases in the future), some people would naturally be subject to
 the court's jurisdiction.

 Unless they have for some reason already decided conclusively that
 they will never leave that jurisdiction and settle elsewhere, they are
 still inconvenienced.

 As an example, the QPL discriminates against everyone who does not
 live conveniently close to Olso.

 And against people who do live close to Oslo but may later contemplate
 to move elsewhere.

That raises an interesting situatoin. What if the author moves? The author
would have to travel back to Oslo to participate in a law suit related to that
version of the license.

-- 
---
Paul TBBle Hampson, MCSE
8th year CompSci/Asian Studies student, ANU
The Boss, Bubblesworth Pty Ltd (ABN: 51 095 284 361)
[EMAIL PROTECTED]

No survivors? Then where do the stories come from I wonder?
-- Capt. Jack Sparrow, Pirates of the Caribbean

License: http://creativecommons.org/licenses/by/2.1/au/
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Paul TBBle Hampson

On Thu, Sep 08, 2005 at 02:30:05PM +0200, Sven Luther wrote:
 9. MISCELLANEOUS.

 Any law or regulation which provides that the language of a contract
 shall be construed against the drafter shall not apply to this License.

Can a license exclude application of laws? Maybe there's a jurisdiction which
has such a law on the books, which _can_ be opted out of, but I doubt such
exists, as it would defeat the purpose of having that law in the first place.

-- 
---
Paul TBBle Hampson, MCSE
8th year CompSci/Asian Studies student, ANU
The Boss, Bubblesworth Pty Ltd (ABN: 51 095 284 361)
[EMAIL PROTECTED]

No survivors? Then where do the stories come from I wonder?
-- Capt. Jack Sparrow, Pirates of the Caribbean

License: http://creativecommons.org/licenses/by/2.1/au/
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread John Hasler

Henning Makholm writes:
 I doubt that people who do not wish to become legally bound to appear at
 the the author's home court whenever he files a frivolous lawsuit can be
 meaningfully described as a group of persons that can be discriminated
 against.

Why do you think that a copyright owner needs a choice of venue clause in
order to file suit against you in his home jurisdiction?
-- 
John Hasler


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Fri, Sep 09, 2005 at 07:23:10AM -0500, John Hasler wrote:
 Henning Makholm writes:
  I doubt that people who do not wish to become legally bound to appear at
  the the author's home court whenever he files a frivolous lawsuit can be
  meaningfully described as a group of persons that can be discriminated
  against.
 
 Why do you think that a copyright owner needs a choice of venue clause in
 order to file suit against you in his home jurisdiction?

I had the impression that international law mandates that you can sue someone
only where he lives, is established, or makes business, at least this seems to
be the case in France. But then maybe this was only for contract law, or
something, not sure, as IANAL.

This is indeed a good question, and one which needs to be solved to solve this
issue.

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Humberto Massa Guimarães

 I doubt that people who do not wish to become legally bound to appear
 at the the author's home court whenever he files a frivolous lawsuit
 can be meaningfully described as a group of persons that can be
 discriminated against. If everybody belongs to the group, is it
 meaningfull to discriminate against it?

Try people who do not have enough money to travel to $VENUE to defend
themselves from a frivolous lawsuit -- one that they will lose by defaulting
their court appearance. I think Debian agrees that poor people in general
is a group that is protected by DFSG#5.

--
HTH,
Massa


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 15:46, Sven Luther wrote:
 On Fri, Sep 09, 2005 at 07:23:10AM -0500, John Hasler wrote:
  Henning Makholm writes:
   I doubt that people who do not wish to become legally bound to appear
   at the the author's home court whenever he files a frivolous lawsuit
   can be meaningfully described as a group of persons that can be
   discriminated against.
 
  Why do you think that a copyright owner needs a choice of venue clause in
  order to file suit against you in his home jurisdiction?

 I had the impression that international law mandates that you can sue
 someone only where he lives, is established, or makes business, at least
 this seems to be the case in France. But then maybe this was only for
 contract law, or something, not sure, as IANAL.

I think it is called 'International Private Law'. In case of no clause of 
choice-of-vanue and choice-of-low were stipulated, these two are determinated 
by the means of [1]. I also think that the parties can dispute where the 
process be held, e.g. the selected forum / jury /court could be varacious for 
both sites, not giving pre-advantages to any of them, but IANAL also.

In case you accept a contract or license with a choice-of-vanue and 
choice-of-low it is obvious you need to obey with the given ones. You guess 
who can has the pre-advantages in that case - licensor or licensee.

[1] http://en.wikipedia.org/wiki/Private_international_law

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Humberto Massa Guimarães [EMAIL PROTECTED] wrote:
 I doubt that people who do not wish to become legally bound to appear
 at the the author's home court whenever he files a frivolous lawsuit
 can be meaningfully described as a group of persons that can be
 discriminated against. If everybody belongs to the group, is it
 meaningfull to discriminate against it?
 
 Try people who do not have enough money to travel to $VENUE to defend
 themselves from a frivolous lawsuit -- one that they will lose by defaulting
 their court appearance. I think Debian agrees that poor people in general
 is a group that is protected by DFSG#5.

Whereas the alternative may be that licensors are unable to afford the
enforcement of their license. Would you prefer to discriminate against
them?

The legal system discriminates in favour of rich people. That's true
regardless of license conditions.
-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Humberto Massa Guimarães

 Whereas the alternative may be that licensors are unable to afford the
 enforcement of their license. Would you prefer to discriminate against
 them?

YES. Please. The DFSG #5 says you should not discriminate the licensee;
the licensor is OK. Debian does, in an active basis, discriminate against
licensors: if they refuse to release source code; if they license their
documentation under the GDFL, MPL (?), old QPL, etc, etc, etc.

Free Software is about the licensors (copyright owners) relinquishing some
of their rights to assure the rights of the commons.

 The legal system discriminates in favour of rich people. That's true
 regardless of license conditions.

That's exactly why we (should) discriminate in favour of poor people.

--
HTH,
Massa


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 17:35, Matthew Garrett wrote:
 Humberto Massa Guimarães [EMAIL PROTECTED] wrote:
  I doubt that people who do not wish to become legally bound to appear
  at the the author's home court whenever he files a frivolous lawsuit
  can be meaningfully described as a group of persons that can be
  discriminated against. If everybody belongs to the group, is it
  meaningfull to discriminate against it?
 
  Try people who do not have enough money to travel to $VENUE to defend
  themselves from a frivolous lawsuit -- one that they will lose by
  defaulting their court appearance. I think Debian agrees that poor
  people in general is a group that is protected by DFSG#5.

 Whereas the alternative may be that licensors are unable to afford the
 enforcement of their license. Would you prefer to discriminate against
 them?

Debian has always been full of software licensed that way ;-) Now you want 
(unintentially) to leave possible holes thru new 'a-la sco insane cases' to 
enter the scene... all over the world. 

 The legal system discriminates in favour of rich people. That's true
 regardless of license conditions.

I'll agree here ! Then why leave easy targets to lawsuit sharks ?

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Humberto Massa Guimarães [EMAIL PROTECTED] wrote:

 Free Software is about the licensors (copyright owners) relinquishing some
 of their rights to assure the rights of the commons.

Without the licensors, there is no commons. Without an ability to
enforce licenses, the concept of copyleft becomes pointless. In order to
maintain the freedoms that copyleft-style licenses offer us, the
licensor needs to be able to engage in lawsuits.

 The legal system discriminates in favour of rich people. That's true
 regardless of license conditions.
 
 That's exactly why we (should) discriminate in favour of poor people.

And, hence, discriminate against rich ones?

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

George Danchev [EMAIL PROTECTED] wrote:
 On Friday 09 September 2005 17:35, Matthew Garrett wrote:
 Whereas the alternative may be that licensors are unable to afford the
 enforcement of their license. Would you prefer to discriminate against
 them?
 
 Debian has always been full of software licensed that way ;-) Now you want 
 (unintentially) to leave possible holes thru new 'a-la sco insane cases' to 
 enter the scene... all over the world. 

But that's already possible. The majority (all?) of licenses that we
ship don't prevent me from being sued arbitrarily. The only difference
that choice of venue makes is that it potentially increases the cost for
me. Within the UK alone, I can end up paying fairly large travel fees to
deal with a court case. But I'll have to pay a lot more for a lawyer.
Being sued in the US wouldn't be significantly more expensive for me
than being sued here.
 
 The legal system discriminates in favour of rich people. That's true
 regardless of license conditions.
 
 I'll agree here ! Then why leave easy targets to lawsuit sharks ?

How do we protect against that currently?
-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Matthew Garrett [EMAIL PROTECTED]
 Humberto Massa Guimarães [EMAIL PROTECTED] wrote:

 Free Software is about the licensors (copyright owners) relinquishing some
 of their rights to assure the rights of the commons.

 Without the licensors, there is no commons. Without an ability to
 enforce licenses, the concept of copyleft becomes pointless.

You seem to assert that licenses cannot be enforces unless the
licensor gets carte blanche to harrass licensees with frivolous
lawsuits. That is not reality.

Do you think that the GPL and the BSD licenses are both pointless?

 And, hence, discriminate against rich ones?

We *should* discriminate against software whose authors wants the
right to order all users and distributors to travel around the globe
on their whim. Such harassment has nothing at all to do with software
freedom.

-- 
Henning Makholm  Ambiguous cases are defined as those for which the
   compiler being used finds a legitimate interpretation
   which is different from that which the user had in mind.

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Matthew Garrett [EMAIL PROTECTED]

 But that's already possible. The majority (all?) of licenses that we
 ship don't prevent me from being sued arbitrarily.

The majority (all!) of license we ship do not demand that you agree
*in advance* to waive your usual protections against arbitrary
lawsuits in exotic courts.

 The only difference that choice of venue makes is that it
 potentially increases the cost for me.

By orders of magnitude.

 Within the UK alone, I can end up paying fairly large travel fees to
 deal with a court case.

It may be that you do not have any concept of home court within the
UK. That does not mean that the rest of the world's Debian users
should be expected to suffer from that fault.

 I'll agree here ! Then why leave easy targets to lawsuit sharks ?

 How do we protect against that currently?

We protect against leaving easy target by considering software
non-free if its licence demands that you position yourself as an
easier target that you would be without the license.

-- 
Henning MakholmDe kan rejse hid og did i verden nok så flot
 Og er helt fortrolig med alverdens militær

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Fri, Sep 09, 2005 at 03:41:58PM +, MJ Ray wrote:
 [EMAIL PROTECTED] (Marco d'Itri) wrote:
  I am refusing them as long as you cannot clearly show how DFSG#5 forbids
  some restrictions present in the CDDL.
 
 It does not work this way. If you believe that a questionable
 license is free, then it's up to you to explain why it follows
 the DFSG and convince ftpmasters to admit the packages as a
 general rule. If you can't even convince this liberal crowd, ow!

Naturally, you could try to get the package in on the sly, like apparently
happeend with star :)

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Yorick Cool

On Fri, Sep 09, 2005 at 03:35:20PM +0100, Matthew Garrett wrote:
Matthew The legal system discriminates in favour of rich people. That's true
Matthew regardless of license conditions.

Although I don' dispute this assertion per se, the problem at hand is that 
*geography*
necessarily discriminates in favor of people who are closer to such or such 
jurisdiction.
Such a discrimination will necessarily occur. I do not see the difference in 
the degree of
discrimination whether the determination of the group discriminated against is 
left to
international private law or a license.

The only argument I can see against choice of venue clauses is that if you 
distribute your
software on a worldwide basis, then you'll have to expect to enforce it's 
license on a worldwide
basis or to not enforce it in certain regions. 

Of course, that line of reasoning might have a chilling effect on small
companies/individual developers. 

I don't really think there's a perfect solution as regarding discrimination on 
this issue.

-- 
Yorick Cool
Chercheur au CRID
Rempart de la Vierge, 5
B-5000 Namur
Tel: + 32 (0)81 72 47 62 /+32 (0)81 51 37 75
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 18:41, MJ Ray wrote:
 [EMAIL PROTECTED] (Marco d'Itri) wrote:
  I am refusing them as long as you cannot clearly show how DFSG#5 forbids
  some restrictions present in the CDDL.

 It does not work this way. If you believe that a questionable
 license is free, then it's up to you to explain why it follows
 the DFSG and convince ftpmasters to admit the packages as a
 general rule. If you can't even convince this liberal crowd, ow!

Also you may take into account that if an author of cddl'ed software want to 
see it into free software linux/hurd/bsd distributions then the software 
could be easily double licensed, e.g. CDDL/GPL, CDDL/BSD, CDDL/Artistic, and 
so on. If it can not be double licensed with any proven free software license 
for any weird reason, then I'll suspect that can of worms will start showing 
sooner or later. In today's crazy days I'll go for a conservative approach.

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 18:24, Matthew Garrett wrote:
 George Danchev [EMAIL PROTECTED] wrote:
  On Friday 09 September 2005 17:35, Matthew Garrett wrote:
  Whereas the alternative may be that licensors are unable to afford the
  enforcement of their license. Would you prefer to discriminate against
  them?
 
  Debian has always been full of software licensed that way ;-) Now you
  want (unintentially) to leave possible holes thru new 'a-la sco insane
  cases' to enter the scene... all over the world.

 But that's already possible. The majority (all?) of licenses that we
 ship don't prevent me from being sued arbitrarily. The only difference
 that choice of venue makes is that it potentially increases the cost for
 me. Within the UK alone, I can end up paying fairly large travel fees to
 deal with a court case. But I'll have to pay a lot more for a lawyer.
 Being sued in the US wouldn't be significantly more expensive for me
 than being sued here.

The problem is not only with the expensive funny lawsuit trips, you may find 
some jurisdictions and local lows quite ... let's say just strange.

  The legal system discriminates in favour of rich people. That's true
  regardless of license conditions.
 
  I'll agree here ! Then why leave easy targets to lawsuit sharks ?

 How do we protect against that currently?

What changes the picture is that you just add new possibilities to be possibly 
attacked and as we all know sco wont be the last, it was not the smartest 
either... 

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Michael Poole [EMAIL PROTECTED] wrote:
 Matthew Garrett writes:
 The licensor *already* has carte blanche to harrass licensees with
 fivolous lawsuits. The only thing that changes are the costs.
 
 This seems remarkably similar to the argument The user has carte
 blanche to exercise DFSG freedoms; the only thing that a use fee
 changes are the costs.  Does that mean that DFSG#1 allows fees for
 all users of software?

A use fee imposes a cost where no cost would otherwise exist. For a big
evil corporation, the difference in cost between suing me in the UK and
suing me in the US is sufficiently small that they're unlikely to worry
greatly about the amount. Even without a choice of venue clause, they
can launch a lawsuit against me and make my life miserable. They pay
slightly more, I pay slightly less.
 
 At least in the US, it is fairly cheap ($10k, predominantly in lawyer
 fees) to have a lawsuit with improper venue dismissed, and those costs
 can often be awarded to the defendant.  Even if costs are not awarded,
 the US's Federal Rules of Civil Procedure (to wit, FRCP 41(d)) can
 have the judge order the plaintiff to pay for previously dismissed
 actions before further hearing any sufficiently similar action.

So, in fact, it might be *cheaper* for me to have the case handled in
the US than in some other jurisdictions?

(Out of interest, are there any jurisdictions where the defendant is
required to be present in a civil case, or is legal representation
acceptable everywhere?)

 But the freedom to be able to enforce the requirements of a software
 license *does* have something to do with software freedom. There are
 always tradeoffs.
 
 Would you prefer an OSL-style license based on a contract where the
 distributor(s) explicitly agree to provide source code to the
 licensee, handing enforcement ability to all licensees?

Sounds quite reasonable from an ideological point of view, but I can see
it presenting certain practical difficulties.

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 21:10, Matthew Garrett wrote:
 Michael Poole [EMAIL PROTECTED] wrote:
  Matthew Garrett writes:
  The licensor *already* has carte blanche to harrass licensees with
  fivolous lawsuits. The only thing that changes are the costs.
 
  This seems remarkably similar to the argument The user has carte
  blanche to exercise DFSG freedoms; the only thing that a use fee
  changes are the costs.  Does that mean that DFSG#1 allows fees for
  all users of software?

 A use fee imposes a cost where no cost would otherwise exist. For a big
 evil corporation, the difference in cost between suing me in the UK and
 suing me in the US is sufficiently small that they're unlikely to worry
 greatly about the amount. Even without a choice of venue clause, they
 can launch a lawsuit against me and make my life miserable. They pay
 slightly more, I pay slightly less.

They can not make your life miserable with baseless lawsuits in any sane 
country, in fact they perfectly know you may strike em back for lesion of 
your good reputation and so on. But they can make your life miserable with 
baseless lawsuits in any insane country. Go figure what venues are sane and 
what are not. Do you see the light ;)

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Matthew Garrett writes:

 A use fee imposes a cost where no cost would otherwise exist. For a big
 evil corporation, the difference in cost between suing me in the UK and
 suing me in the US is sufficiently small that they're unlikely to worry
 greatly about the amount. Even without a choice of venue clause, they
 can launch a lawsuit against me and make my life miserable. They pay
 slightly more, I pay slightly less.

The relative costs to a well-bankrolled plaintiff are not relevant to
the DFSG.  What is relevant is the relative cost or discrimination to
the user, who will generally be the defendant in these cases.

 At least in the US, it is fairly cheap ($10k, predominantly in lawyer
 fees) to have a lawsuit with improper venue dismissed, and those costs
 can often be awarded to the defendant.  Even if costs are not awarded,
 the US's Federal Rules of Civil Procedure (to wit, FRCP 41(d)) can
 have the judge order the plaintiff to pay for previously dismissed
 actions before further hearing any sufficiently similar action.

 So, in fact, it might be *cheaper* for me to have the case handled in
 the US than in some other jurisdictions?

It may be cheaper to have a US-venued case dismissed *if venue is
obviously improper*.  Where the form is correct (or correctable
through further filings) and there is a reasonable dispute over the
facts, US courts are infamously expensive and prone to cost inflation.

 (Out of interest, are there any jurisdictions where the defendant is
 required to be present in a civil case, or is legal representation
 acceptable everywhere?)

US courts generally require the parties to be physically present at a
few points: trial is the most universal, but (from my own experience)
there may be a pre-trial conference where a judge orders all the
parties to attend in person.  It will also be cheaper for a party to
fly to the court's venue to be deposed than to fly their lawyer to
where they live, and no US-filed case goes to trial without
depositions of all the parties.

Michael Poole


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 21:57, Matthew Garrett wrote:
 George Danchev [EMAIL PROTECTED] wrote:
  On Friday 09 September 2005 21:03, Matthew Garrett wrote:
  Oh, bollocks. The social contract is with the free software community,
  not just the users. Arguing that the rights of the user are the only
  ones that matter suggests that the GPL ought to be non-free - it
  restricts the rights of users in favour of the rights of developers.
  In the vast majority of cases, choice of venue makes it more practical
  for developers to justifiably enforce their licenses. The fact that it
  has the potential to be used against users doesn't make it evil, any
  more than the fact that decss can be used to facilitate DVD piracy makes
  it evil.
 
  The diff is that you can not use GPL in baseless lawsuits against users
  and/or developers. Can you ? Do you risk your baseless adventure will be
  severely striken back in any sane countries ? Y/n

 If I'm willing to lie (and I'd have to be to be filing a baseless
 lawsuit), then yes, I can use the GPL in baseless lawsuits against users
 and/or developers.

You can sue random people for random reasons (in some funny cases you will be 
simply ruled out of court), so it is obviously not a GPL flow. But in all 
cases it depends on the venue authorities. In case of their sanity: at best 
you will damage your business, at worst you will start live on charity. This 
has already been tested in recent lawsuit exercises.

It is unpredictable what will happend in case of jurisdiction or court 
insanity and that possible danger should be avoided.

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

George Danchev [EMAIL PROTECTED] wrote:
 On Friday 09 September 2005 18:24, Matthew Garrett wrote:
 But that's already possible. The majority (all?) of licenses that we
 ship don't prevent me from being sued arbitrarily. The only difference
 that choice of venue makes is that it potentially increases the cost for
 me. Within the UK alone, I can end up paying fairly large travel fees to
 deal with a court case. But I'll have to pay a lot more for a lawyer.
 Being sued in the US wouldn't be significantly more expensive for me
 than being sued here.
 
 The problem is not only with the expensive funny lawsuit trips, you may find 
 some jurisdictions and local lows quite ... let's say just strange.

That's choice of law, rather than choice of venue. I was under the
impression that it was generally accepted.
 
 How do we protect against that currently?
 
 What changes the picture is that you just add new possibilities to be 
 possibly 
 attacked and as we all know sco wont be the last, it was not the smartest 
 either... 

So the presence of a choice of venue clause is a quantitative
difference rather than a qualitative one?

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]
 Without the licensors, there is no commons. Without an ability to
 enforce licenses, the concept of copyleft becomes pointless.
 
 You seem to assert that licenses cannot be enforces unless the
 licensor gets carte blanche to harrass licensees with frivolous
 lawsuits. That is not reality.

The licensor *already* has carte blanche to harrass licensees with
fivolous lawsuits. The only thing that changes are the costs.
 
 Do you think that the GPL and the BSD licenses are both pointless?

I think that a copyleft license is utterly pointless if there's no way
for the licensor to be able to afford to sue infringers. You might as
well just have released the code into the public domain.

 And, hence, discriminate against rich ones?
 
 We *should* discriminate against software whose authors wants the
 right to order all users and distributors to travel around the globe
 on their whim. Such harassment has nothing at all to do with software
 freedom.

But the freedom to be able to enforce the requirements of a software
license *does* have something to do with software freedom. There are
always tradeoffs.
-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Fri, Sep 09, 2005 at 05:35:36PM +0100, Matthew Garrett wrote:
 George Danchev [EMAIL PROTECTED] wrote:
  On Friday 09 September 2005 18:24, Matthew Garrett wrote:
  But that's already possible. The majority (all?) of licenses that we
  ship don't prevent me from being sued arbitrarily. The only difference
  that choice of venue makes is that it potentially increases the cost for
  me. Within the UK alone, I can end up paying fairly large travel fees to
  deal with a court case. But I'll have to pay a lot more for a lawyer.
  Being sued in the US wouldn't be significantly more expensive for me
  than being sued here.
  
  The problem is not only with the expensive funny lawsuit trips, you may 
  find 
  some jurisdictions and local lows quite ... let's say just strange.
 
 That's choice of law, rather than choice of venue. I was under the
 impression that it was generally accepted.

I wonder, let's say you are going to be judged in some random US court, even
if it is with German laws, you still would fall into common US-practice legal
or something such ? 

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Matthew Garrett [EMAIL PROTECTED]
 Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]

 Without the licensors, there is no commons. Without an ability to
 enforce licenses, the concept of copyleft becomes pointless.

 You seem to assert that licenses cannot be enforces unless the
 licensor gets carte blanche to harrass licensees with frivolous
 lawsuits. That is not reality.

 The licensor *already* has carte blanche to harrass licensees with
 fivolous lawsuits.

No - if the court throws out the case ex officio because of lack of
jurisdiction, no harassment results.

 Do you think that the GPL and the BSD licenses are both pointless?

 I think that a copyleft license is utterly pointless if there's no way
 for the licensor to be able to afford to sue infringers.

According to your argument, the GPL and BSD license must be pointless,
because they don't contain any obnoxious choice-of-venue clauses.

 But the freedom to be able to enforce the requirements of a software
 license *does* have something to do with software freedom.

Not anything I can read in the DFSG.

-- 
Henning Makholm  Skidt med din brud
  når der står et par nymfer
 i tyl og trikot i den lysegrønne skov!

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Sven Luther [EMAIL PROTECTED]

 I wonder, let's say you are going to be judged in some random US court, even
 if it is with German laws, you still would fall into common US-practice legal
 or something such ? 

Court procedures always go by the local law of the forum.

-- 
Henning Makholm   And here we could talk about the Plato's Cave thing for a
while---the Veg-O-Matic of metaphors---it slices! it dices!


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 19:35, Matthew Garrett wrote:
 George Danchev [EMAIL PROTECTED] wrote:
  On Friday 09 September 2005 18:24, Matthew Garrett wrote:
  But that's already possible. The majority (all?) of licenses that we
  ship don't prevent me from being sued arbitrarily. The only difference
  that choice of venue makes is that it potentially increases the cost for
  me. Within the UK alone, I can end up paying fairly large travel fees to
  deal with a court case. But I'll have to pay a lot more for a lawyer.
  Being sued in the US wouldn't be significantly more expensive for me
  than being sued here.
 
  The problem is not only with the expensive funny lawsuit trips, you may
  find some jurisdictions and local lows quite ... let's say just strange.

 That's choice of law, rather than choice of venue. I was under the
 impression that it was generally accepted.

I mean the venue designates the jurisdiction where a lawsuit process is held. 
Can you prove somehow that all of them around the globe are sane and wont be 
used for speculations ... 
put-more-insane-fast-money-seeking-killing-any-competition-monopilic-methods-here

I have currently no args against choice-of-law, but doesn't mean it is sane 
and safe. I just wonder why COV and COL are not present in proven licenses 
like GPL, BSD, Artistic, and why are they needed from now on.

  How do we protect against that currently?
 
  What changes the picture is that you just add new possibilities to be
  possibly attacked and as we all know sco wont be the last, it was not the
  smartest either...

 So the presence of a choice of venue clause is a quantitative
 difference rather than a qualitative one?

I don't think it makes any difference. You just open new holes I'm arguing 
against. Why you need to put that baseless challenges on user's souls ? 

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Olaf van der Spek

On 9/9/05, Matthew Garrett [EMAIL PROTECTED] wrote:
 Humberto Massa Guimarães [EMAIL PROTECTED] wrote:
  I doubt that people who do not wish to become legally bound to appear
  at the the author's home court whenever he files a frivolous lawsuit
  can be meaningfully described as a group of persons that can be
  discriminated against. If everybody belongs to the group, is it
  meaningfull to discriminate against it?
 
  Try people who do not have enough money to travel to $VENUE to defend
  themselves from a frivolous lawsuit -- one that they will lose by defaulting
  their court appearance. I think Debian agrees that poor people in general
  is a group that is protected by DFSG#5.
 
 Whereas the alternative may be that licensors are unable to afford the
 enforcement of their license. Would you prefer to discriminate against
 them?

It certainly sounds better. The licensor can then choose not to
enforce it, whereas the licensee wouldn't have the choice not to
defend himself.

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]
 The licensor *already* has carte blanche to harrass licensees with
 fivolous lawsuits.
 
 No - if the court throws out the case ex officio because of lack of
 jurisdiction, no harassment results.

Eh? They can sue you in your jurisdiction. In the case you're worrying
about (obnoxious large businesses suing people in order to intimidate
them), the difference in cost is unlikely to deter them.
 
 I think that a copyleft license is utterly pointless if there's no way
 for the licensor to be able to afford to sue infringers.
 
 According to your argument, the GPL and BSD license must be pointless,
 because they don't contain any obnoxious choice-of-venue clauses.

If the licensor doesn't have enough money to enforce them, then yes, I
think they're pointless. What's the point of a license that you can't
enforce?

 But the freedom to be able to enforce the requirements of a software
 license *does* have something to do with software freedom.
 
 Not anything I can read in the DFSG.

The DFSG are not holy writ, but how about if I phrase it as
discrimination against licensors without money?

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

George Danchev [EMAIL PROTECTED] wrote:
 On Friday 09 September 2005 19:35, Matthew Garrett wrote:
 That's choice of law, rather than choice of venue. I was under the
 impression that it was generally accepted.
 
 I mean the venue designates the jurisdiction where a lawsuit process is held. 
 Can you prove somehow that all of them around the globe are sane and wont be 
 used for speculations ... 

If a license chooses a jurisdiction that is known to be insane then that
specific case may be non-free.

 So the presence of a choice of venue clause is a quantitative
 difference rather than a qualitative one?
 
 I don't think it makes any difference. You just open new holes I'm arguing 
 against. Why you need to put that baseless challenges on user's souls ? 

The presence or absence of a choice of venue clause does not alter the
fact that the licensor can make baseless challenges against the user.
The ease with which they can do so varies to some degree, but for large
evil companies the practical difference is going to be small.

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Humberto Massa Guimarães

 The DFSG are not holy writ, but how about if I phrase it as
 discrimination against licensors without money?
DFSG #5: No Discrimination Against Persons or Groups

The license must not discriminate against any person or group of persons.

This implies, at least to me, that the _licensor_ is not allowed to
discriminate against a person or group, because he/she is the one who
chooses the license.
--
HTH,
Massa


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Matthew Garrett writes:

 George Danchev [EMAIL PROTECTED] wrote:
 On Friday 09 September 2005 18:24, Matthew Garrett wrote:
 But that's already possible. The majority (all?) of licenses that we
 ship don't prevent me from being sued arbitrarily. The only difference
 that choice of venue makes is that it potentially increases the cost for
 me. Within the UK alone, I can end up paying fairly large travel fees to
 deal with a court case. But I'll have to pay a lot more for a lawyer.
 Being sued in the US wouldn't be significantly more expensive for me
 than being sued here.
 
 The problem is not only with the expensive funny lawsuit trips, you may find 
 some jurisdictions and local lows quite ... let's say just strange.

 That's choice of law, rather than choice of venue. I was under the
 impression that it was generally accepted.

Choice of law is generally accepted because no one has explained why
the chosen laws inherently discriminate against groups.  Some legal
systems/chosen laws would fail must not discriminate against groups
in obvious ways, but they have not been specified in licenses.

Michael Poole


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Matthew Garrett [EMAIL PROTECTED]
 Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]

 The licensor *already* has carte blanche to harrass licensees with
 fivolous lawsuits.

 No - if the court throws out the case ex officio because of lack of
 jurisdiction, no harassment results.

 Eh? They can sue you in your jurisdiction.

Yes they can. But that gives me excellent chances to convince the
court that the case is devoid of merit - *without* having to spend a
fortune and tons of time on travel.

 In the case you're worrying about (obnoxious large businesses suing
 people in order to intimidate them), the difference in cost is
 unlikely to deter them.

The point is that the cost *for me* of defending myself is much more
favourable.

 According to your argument, the GPL and BSD license must be pointless,
 because they don't contain any obnoxious choice-of-venue clauses.

 If the licensor doesn't have enough money to enforce them, then yes, I
 think they're pointless. What's the point of a license that you can't
 enforce?

In the free software world, the point of having a license is to
*allow* others to use, share and extend your software.

 The DFSG are not holy writ, but how about if I phrase it as
 discrimination against licensors without money?

That wouldn't make your argument more coherent. We're concerned
exclusively with which rights the *user* gets. Whether the author
thinks it is worth it to give the user those rights is not something
we consider at all. We can just observe that sufficiently many
software authors *have* been willing to do so that we can put together
a good free OS. There is no reason to start including software in our
OS where the user only gets freedoms with this kind of strings
attached.

-- 
Henning Makholm   I always thought being *real* sad
would be *cooler* than acting *fake*
 sad, but it's not. It's not cool at *all*.


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Matthew Garrett [EMAIL PROTECTED]

 I don't think it makes any difference. You just open new holes I'm arguing 
 against. Why you need to put that baseless challenges on user's souls ? 

 The presence or absence of a choice of venue clause does not alter the
 fact that the licensor can make baseless challenges against the user.

It very much alters the degree of harm to the user that such baseless
challenges give cause to.

-- 
Henning Makholm  Den nyttige hjemmedatamat er og forbliver en myte.
Generelt kan der ikke peges på databehandlingsopgaver af
  en sådan størrelsesorden og af en karaktér, som berettiger
  forestillingerne om den nye hjemme- og husholdningsteknologi.

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Matthew Garrett writes:

 Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]
 Without the licensors, there is no commons. Without an ability to
 enforce licenses, the concept of copyleft becomes pointless.
 
 You seem to assert that licenses cannot be enforces unless the
 licensor gets carte blanche to harrass licensees with frivolous
 lawsuits. That is not reality.

 The licensor *already* has carte blanche to harrass licensees with
 fivolous lawsuits. The only thing that changes are the costs.

This seems remarkably similar to the argument The user has carte
blanche to exercise DFSG freedoms; the only thing that a use fee
changes are the costs.  Does that mean that DFSG#1 allows fees for
all users of software?

At least in the US, it is fairly cheap ($10k, predominantly in lawyer
fees) to have a lawsuit with improper venue dismissed, and those costs
can often be awarded to the defendant.  Even if costs are not awarded,
the US's Federal Rules of Civil Procedure (to wit, FRCP 41(d)) can
have the judge order the plaintiff to pay for previously dismissed
actions before further hearing any sufficiently similar action.

 Do you think that the GPL and the BSD licenses are both pointless?

 I think that a copyleft license is utterly pointless if there's no way
 for the licensor to be able to afford to sue infringers. You might as
 well just have released the code into the public domain.

 And, hence, discriminate against rich ones?
 
 We *should* discriminate against software whose authors wants the
 right to order all users and distributors to travel around the globe
 on their whim. Such harassment has nothing at all to do with software
 freedom.

 But the freedom to be able to enforce the requirements of a software
 license *does* have something to do with software freedom. There are
 always tradeoffs.

Would you prefer an OSL-style license based on a contract where the
distributor(s) explicitly agree to provide source code to the
licensee, handing enforcement ability to all licensees?

Michael Poole


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]
 In the case you're worrying about (obnoxious large businesses suing
 people in order to intimidate them), the difference in cost is
 unlikely to deter them.
 
 The point is that the cost *for me* of defending myself is much more
 favourable.

You're ignoring the cost of paying for any sort of legal advice, which
isn't very realistic. If you want to redefine choice of venue as
Discriminates against poor people who are competent to represent
themselves legally, then I'd be more inclined to take it seriously.

 If the licensor doesn't have enough money to enforce them, then yes, I
 think they're pointless. What's the point of a license that you can't
 enforce?
 
 In the free software world, the point of having a license is to
 *allow* others to use, share and extend your software.

No. The point of the GPL is to allow others to use, share and extend
your software and to ensure that their derivative works remain free
themselves. If you can't do the latter, you might as well have released
it into the public domain.
 
 The DFSG are not holy writ, but how about if I phrase it as
 discrimination against licensors without money?
 
 That wouldn't make your argument more coherent. We're concerned
 exclusively with which rights the *user* gets. Whether the author
 thinks it is worth it to give the user those rights is not something
 we consider at all. We can just observe that sufficiently many
 software authors *have* been willing to do so that we can put together
 a good free OS. There is no reason to start including software in our
 OS where the user only gets freedoms with this kind of strings
 attached.

Oh, bollocks. The social contract is with the free software community,
not just the users. Arguing that the rights of the user are the only
ones that matter suggests that the GPL ought to be non-free - it
restricts the rights of users in favour of the rights of developers.
In the vast majority of cases, choice of venue makes it more practical
for developers to justifiably enforce their licenses. The fact that it
has the potential to be used against users doesn't make it evil, any
more than the fact that decss can be used to facilitate DVD piracy makes
it evil.

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Matthew Garrett [EMAIL PROTECTED]
 Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]

 In the case you're worrying about (obnoxious large businesses suing
 people in order to intimidate them), the difference in cost is
 unlikely to deter them.

 The point is that the cost *for me* of defending myself is much more
 favourable.

 You're ignoring the cost of paying for any sort of legal advice, which
 isn't very realistic.

No I'm not. When the case is trule meritless there is usually no
reason to involve a lawyer (*unless* one is forced to defend oneself
in an unknown legal system with a foreign language).

And even if a lawyer proves necessary, standard insurance will usually
cover his fees. But I'm bloody sure that a standard insurance policy
will *not* cover my cost in cases where I have previously agreed to
let myself be sued in a foreign country.

 In the free software world, the point of having a license is to
 *allow* others to use, share and extend your software.

 No. The point of the GPL is to allow others to use, share and extend
 your software and to ensure that their derivative works remain free
 themselves.

In that order.

 If you can't do the latter, you might as well have released it into
 the public domain.

Yes, but if you don't do the former, the latter has nothing to do with
freedom anyway.

 Oh, bollocks. The social contract is with the free software community,
 not just the users.

Yes, but the if you stick to using software from main, we will do our
best to check that you have such-and-such rights part of it is a
promise to the users. There are other parts of the social contract
that make promises to other parts of the community.

 Arguing that the rights of the user are the only ones that matter
 suggests that the GPL ought to be non-free - it restricts the rights
 of users in favour of the rights of developers.

The GPL does give the user those rights we promise to users that they
will have. Whether or not it gives any rights beyond that is
immaterial.

 In the vast majority of cases, choice of venue makes it more
 practical for developers to justifiably enforce their licenses.

That does not change the fact that we would be going back on our
promise to the users if we started including software that required
them to subject themselves to that risking.

 The fact that it has the potential to be used against users doesn't
 make it evil,

Who is speaking about evil?

-- 
Henning Makholm   The great secret, known to internists and
 learned early in marriage by internists' wives, but
   still hidden from the general public, is that most things get
 better by themselves. Most things, in fact, are better by morning.


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Friday 09 September 2005 21:03, Matthew Garrett wrote:
--cut--
  That wouldn't make your argument more coherent. We're concerned
  exclusively with which rights the *user* gets. Whether the author
  thinks it is worth it to give the user those rights is not something
  we consider at all. We can just observe that sufficiently many
  software authors *have* been willing to do so that we can put together
  a good free OS. There is no reason to start including software in our
  OS where the user only gets freedoms with this kind of strings
  attached.

 Oh, bollocks. The social contract is with the free software community,
 not just the users. Arguing that the rights of the user are the only
 ones that matter suggests that the GPL ought to be non-free - it
 restricts the rights of users in favour of the rights of developers.
 In the vast majority of cases, choice of venue makes it more practical
 for developers to justifiably enforce their licenses. The fact that it
 has the potential to be used against users doesn't make it evil, any
 more than the fact that decss can be used to facilitate DVD piracy makes
 it evil.

The diff is that you can not use GPL in baseless lawsuits against users and/or 
developers. Can you ? Do you risk your baseless adventure will be severely 
striken back in any sane countries ? Y/n

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Henning Makholm [EMAIL PROTECTED] wrote:
 Scripsit Matthew Garrett [EMAIL PROTECTED]
 You're ignoring the cost of paying for any sort of legal advice, which
 isn't very realistic.
 
 No I'm not. When the case is trule meritless there is usually no
 reason to involve a lawyer (*unless* one is forced to defend oneself
 in an unknown legal system with a foreign language).
 
 And even if a lawyer proves necessary, standard insurance will usually
 cover his fees. But I'm bloody sure that a standard insurance policy
 will *not* cover my cost in cases where I have previously agreed to
 let myself be sued in a foreign country.

My insurance optionally covers employment disputes, accidents and
housing issues. I don't have any cover that protects me from arbitrary
legal cases. In any case, Discriminates against poor people who have an
insurance policy that covers legal cases in their home country but not
elsewhere? That's beginning to sound a bit fringe.
 
 No. The point of the GPL is to allow others to use, share and extend
 your software and to ensure that their derivative works remain free
 themselves.
 
 In that order.

Not at all. The strength of the copyleft in the GPL suggests that
they're all treated with equal priority.

 If you can't do the latter, you might as well have released it into
 the public domain.
 
 Yes, but if you don't do the former, the latter has nothing to do with
 freedom anyway.

Right. This sort of clause doesn't impair your ability to use, share or
extend software except in the case of someone suing you, which *they can
do anyway*.

 Oh, bollocks. The social contract is with the free software community,
 not just the users.
 
 Yes, but the if you stick to using software from main, we will do our
 best to check that you have such-and-such rights part of it is a
 promise to the users. There are other parts of the social contract
 that make promises to other parts of the community.

And what rights are we taking away from them? The right not to be sued?
We don't provide them with that right in the first place.

 In the vast majority of cases, choice of venue makes it more
 practical for developers to justifiably enforce their licenses.
 
 That does not change the fact that we would be going back on our
 promise to the users if we started including software that required
 them to subject themselves to that risking.

What risk? I can already sue you in the UK, if I want. I could forge
evidence that suggested that you'd agreed to that. I could expose you to
the same costs without you ever having touched a piece of software that
was under a choice of venue clause. How are we protecting our users from
anything here?

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

George Danchev [EMAIL PROTECTED] wrote:
 On Friday 09 September 2005 21:03, Matthew Garrett wrote:
 Oh, bollocks. The social contract is with the free software community,
 not just the users. Arguing that the rights of the user are the only
 ones that matter suggests that the GPL ought to be non-free - it
 restricts the rights of users in favour of the rights of developers.
 In the vast majority of cases, choice of venue makes it more practical
 for developers to justifiably enforce their licenses. The fact that it
 has the potential to be used against users doesn't make it evil, any
 more than the fact that decss can be used to facilitate DVD piracy makes
 it evil.
 
 The diff is that you can not use GPL in baseless lawsuits against users 
 and/or 
 developers. Can you ? Do you risk your baseless adventure will be severely 
 striken back in any sane countries ? Y/n

If I'm willing to lie (and I'd have to be to be filing a baseless
lawsuit), then yes, I can use the GPL in baseless lawsuits against users
and/or developers.
-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Michael Poole [EMAIL PROTECTED] wrote:
 Matthew Garrett writes:
 
 My insurance optionally covers employment disputes, accidents and
 housing issues. I don't have any cover that protects me from arbitrary
 legal cases. In any case, Discriminates against poor people who have an
 insurance policy that covers legal cases in their home country but not
 elsewhere? That's beginning to sound a bit fringe.
 
 It is considerably less fringe than Choice of venue is
 non-discriminatory because suitable lies allow anybody to sue you
 anywhere over anything even with no license and only the cost changes
 if you have to defend yourself in the other guy's home court because
 of a software license.

I'd disagree, but I think that's a matter of opinion.

 As you point out elsewhere, total fabrications can be invented to
 support any claim, but DFSG freedom questions should be limited to
 what the license imposes on or requires from users.

What's the point in us worrying about licenses granting freedoms that
can't actually be exercised in life? There is no freedom not to be
sued, so it's impossible for a license to contravene that.

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Matthew Garrett writes:

 Michael Poole [EMAIL PROTECTED] wrote:
 As you point out elsewhere, total fabrications can be invented to
 support any claim, but DFSG freedom questions should be limited to
 what the license imposes on or requires from users.

 What's the point in us worrying about licenses granting freedoms that
 can't actually be exercised in life? There is no freedom not to be
 sued, so it's impossible for a license to contravene that.

There are the DFSG freedoms to not have to pay a fee and to not be
discriminated against, and licenses can contravene those.  Even though
a sociopath can impose costs on an arbitrary person, we should not
treat being vicimized by a sociopath as the baseline for freedom.

Michael Poole


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Andrew Suffield

On Fri, Sep 09, 2005 at 05:35:36PM +0100, Matthew Garrett wrote:
 George Danchev [EMAIL PROTECTED] wrote:
  On Friday 09 September 2005 18:24, Matthew Garrett wrote:
  But that's already possible. The majority (all?) of licenses that we
  ship don't prevent me from being sued arbitrarily. The only difference
  that choice of venue makes is that it potentially increases the cost for
  me. Within the UK alone, I can end up paying fairly large travel fees to
  deal with a court case. But I'll have to pay a lot more for a lawyer.
  Being sued in the US wouldn't be significantly more expensive for me
  than being sued here.
  
  The problem is not only with the expensive funny lawsuit trips, you may 
  find 
  some jurisdictions and local lows quite ... let's say just strange.
 
 That's choice of law, rather than choice of venue. I was under the
 impression that it was generally accepted.

Only insofar as the laws generally chosen are accepted. If somebody
showed up with a choice for Swaziland[0], we might have a problem with
that. But although US law is fairly right-wing, and German law is
fairly crazy, neither of them are actually prejudicial in a fair court.

[0] It's an autocracy (under state of emergency rules for about 30
years, they're currently trying to reestablish some semblence of
democracy); the case would be determined by who paid the
largest bribe to the king. Given his proclivities, that might be
the one with the cutest intern.

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 : :' :  http://www.debian.org/ |
 `. `'  |
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-09 Thread Andrew Suffield

On Fri, Sep 09, 2005 at 10:24:19PM +1000, Paul TBBle Hampson wrote:
 On Thu, Sep 08, 2005 at 02:30:05PM +0200, Sven Luther wrote:
  9. MISCELLANEOUS.
 
  Any law or regulation which provides that the language of a contract
  shall be construed against the drafter shall not apply to this License.
 
 Can a license exclude application of laws? Maybe there's a jurisdiction which
 has such a law on the books, which _can_ be opted out of, but I doubt such
 exists, as it would defeat the purpose of having that law in the first place.

Under certain limited conditions, yes. Generally, no.

There's a few statutes on the books around the place which say This
applies to [...] unless waived by both parties and similar stuff.

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Michael Poole [EMAIL PROTECTED] wrote:
 Matthew Garrett writes:
 What's the point in us worrying about licenses granting freedoms that
 can't actually be exercised in life? There is no freedom not to be
 sued, so it's impossible for a license to contravene that.
 
 There are the DFSG freedoms to not have to pay a fee and to not be
 discriminated against, and licenses can contravene those.  Even though
 a sociopath can impose costs on an arbitrary person, we should not
 treat being vicimized by a sociopath as the baseline for freedom.

Right, but the cost being suggested only appears when someone is sued
frivilously (I'm assuming that we don't think that the freedom to
contravene a license without being sued is something to worry about...),
which approximates sociopathic behaviour. What practical difference does
a choice of venue clause make to the user?

-- 
Matthew Garrett | [EMAIL PROTECTED]


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Joerg Jaspert

Sven Luther schrieb:

 Notice that we already accepted a CDDLed program in debian, namely the star
 packages which comes with this clause :

Wrong.

 So, i wonder why it was accepted, if it was non-free. But maybe we just passed
 it up silently and didn't notice ? Who was the ftp-master responsible for
 letting this one enter the archive, and can he comment on this ?

Please look up facts before you go this road.

http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/star.copyright

Took about ten seconds to find out it was GPL before upstream relicensed
and debian maint just copied that.
Write a bug against the package if its non-free is your option now.

-- 
bye Joerg


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Thu, Sep 08, 2005 at 03:10:56PM +0200, Joerg Jaspert wrote:
 Sven Luther schrieb:
 
  Notice that we already accepted a CDDLed program in debian, namely the star
  packages which comes with this clause :
 
 Wrong.

Well, i installed the package in sid (star 1.5a60-2), and looked at
/usr/share/doc/star/copyright and it was indeed the CDDL version 1.

  So, i wonder why it was accepted, if it was non-free. But maybe we just 
  passed
  it up silently and didn't notice ? Who was the ftp-master responsible for
  letting this one enter the archive, and can he comment on this ?
 
 Please look up facts before you go this road.

Yeah, well, i did an apt-get install star and looked at the copyright file, so
i am not sure what facts i have to believe then.

 http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/star.copyright
 
 Took about ten seconds to find out it was GPL before upstream relicensed
 and debian maint just copied that.

Ah, ok, nice to know.

For your info, the upstream author claims that Debian has accepted the CDDL as
free, because the CDDLed star package has been accepted in debian.

So i wondered if that was a real thing, or if the licence change just slipped
in without anyone noticing, which may indeed be the case.

 Write a bug against the package if its non-free is your option now.

Well, i want first to know if we indeed consider the CDDL and its
choice-of-venue clause non-free, or not. And this is as good as any a place to
start this discussion, so i will attaach the full licence file here.

Friendly,

Sven Luther
This package was debianized by Pawel Wiecek [EMAIL PROTECTED] on
Tue, 29 Jan 2002 12:10:43 +0100.

It was downloaded from ftp://ftp.berlios.de/pub/star/

Project's webpage:
http://www.fokus.gmd.de/research/cc/glone/employees/joerg.schilling/private/star.html

Upstream Author: Joerg Schilling [EMAIL PROTECTED]

Copyright:

COMMON DEVELOPMENT AND DISTRIBUTION LICENSE Version 1.0

1. Definitions.

1.1. Contributor means each individual or entity that creates
 or contributes to the creation of Modifications.

1.2. Contributor Version means the combination of the Original
 Software, prior Modifications used by a Contributor (if any),
 and the Modifications made by that particular Contributor.

1.3. Covered Software means (a) the Original Software, or (b)
 Modifications, or (c) the combination of files containing
 Original Software with files containing Modifications, in
 each case including portions thereof.

1.4. Executable means the Covered Software in any form other
 than Source Code.

1.5. Initial Developer means the individual or entity that first
 makes Original Software available under this License.

1.6. Larger Work means a work which combines Covered Software or
 portions thereof with code not governed by the terms of this
 License.

1.7. License means this document.

1.8. Licensable means having the right to grant, to the maximum
 extent possible, whether at the time of the initial grant or
 subsequently acquired, any and all of the rights conveyed
 herein.

1.9. Modifications means the Source Code and Executable form of
 any of the following:

A. Any file that results from an addition to, deletion from or
   modification of the contents of a file containing Original
   Software or previous Modifications;

B. Any new file that contains any part of the Original
   Software or previous Modifications; or

C. Any new file that is contributed or otherwise made
   available under the terms of this License.

1.10. Original Software means the Source Code and Executable
  form of computer software code that is originally released
  under this License.

1.11. Patent Claims means any patent claim(s), now owned or
  hereafter acquired, including without limitation, method,
  process, and apparatus claims, in any patent Licensable by
  grantor.

1.12. Source Code means (a) the common form of computer software
  code in which modifications are made and (b) associated
  documentation included in or with such code.

1.13. You (or Your) means an individual or a legal entity
  exercising rights under, and complying with all of the terms
  of, this License.  For legal entities, You includes any
  entity which controls, is controlled by, or is under common
  control with You.  For purposes of this definition,
  control means (a) the power, direct or indirect, to cause
  the direction or management of such entity, whether by
  contract or otherwise, or (b) ownership of more than fifty
  percent (50%) of the outstanding shares or beneficial
  ownership of such entity.

2. License Grants.

2.1. The Initial Developer Grant.

Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread George Danchev

On Thursday 08 September 2005 16:21, Sven Luther wrote:
--cut--
 Yeah, well, i did an apt-get install star and looked at the copyright file,
 so i am not sure what facts i have to believe then.

  http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/star
 .copyright
 
  Took about ten seconds to find out it was GPL before upstream relicensed
  and debian maint just copied that.

 Ah, ok, nice to know.

Note that the latest upstream development version is star-1.5a67.tar.gz [1] 
and is CDDL licensed with the following slight modifications:

diff -Naur CDDL.Sun.txt CDDL.Schily.txt
--- CDDL.Sun.txt2005-02-09 07:36:33.0 +0200
+++ CDDL.Schily.txt 2005-02-10 01:41:21.0 +0200
@@ -368,10 +368,9 @@
 DISTRIBUTION LICENSE (CDDL)

 For Covered Software in this distribution, this License shall
-be governed by the laws of the State of California (excluding
-conflict-of-law provisions).
+be governed by the laws of Germany (excluding conflict-of-law
+provisions).

 Any litigation relating to this License shall be subject to the
-jurisdiction of the Federal Courts of the Northern District of
-California and the state courts of the State of California, with
-venue lying in Santa Clara County, California.
+jurisdiction and the courts of Berlin Germany, with venue lying
+in Berlin Germany.

[1] http://sourcewell.berlios.de/appbyid.php?id=1036

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Dalibor Topic


Sven Luther wrote:

Notice that we already accepted a CDDLed program in debian, namely the star
packages which comes with this clause :

9. MISCELLANEOUS.


[snip]


 The application of the
United Nations Convention on Contracts for the International Sale
of Goods is expressly excluded.


[snip]

That's my favourite bit of lawyerese in MPL-derivative licenses.

I wish they had expressly excluded the sharia law on software licenses 
as practised by the late Taleban ruling Kandahar.



So, i wonder why it was accepted, if it was non-free. But maybe we just passed
it up silently and didn't notice ? Who was the ftp-master responsible for
letting this one enter the archive, and can he comment on this ?


I guess it was a mistake.

star used to be under the GPL, and then Joerg Schilling changed the 
license to CDDL. The respective change was at 
http://packages.qa.debian.org/s/star/news/4.html and the license change 
did not seem to have been discussed on debian-legal. The discussions on 
CDDL in 2005-01 seem to have petered out inconclusively.


cheers,
dalibor topic


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Thu, Sep 08, 2005 at 03:55:56PM +0200, Dalibor Topic wrote:
 Sven Luther wrote:
 Notice that we already accepted a CDDLed program in debian, namely the star
 packages which comes with this clause :
 
 9. MISCELLANEOUS.
 
 [snip]
 
  The application of the
 United Nations Convention on Contracts for the International Sale
 of Goods is expressly excluded.
 
 [snip]
 
 That's my favourite bit of lawyerese in MPL-derivative licenses.
 
 I wish they had expressly excluded the sharia law on software licenses 
 as practised by the late Taleban ruling Kandahar.

So, is this non-free or not ?

 So, i wonder why it was accepted, if it was non-free. But maybe we just 
 passed
 it up silently and didn't notice ? Who was the ftp-master responsible for
 letting this one enter the archive, and can he comment on this ?
 
 I guess it was a mistake.

So, we need either to get back the old star version, or somehow kick the whole
thing out of debian and into non-free ...

 star used to be under the GPL, and then Joerg Schilling changed the 
 license to CDDL. The respective change was at 
 http://packages.qa.debian.org/s/star/news/4.html and the license change 
 did not seem to have been discussed on debian-legal. The discussions on 
 CDDL in 2005-01 seem to have petered out inconclusively.

... but before taking such actions, we should probably decide on the CDDL.

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Thu, Sep 08, 2005 at 04:53:12PM +0300, George Danchev wrote:
 On Thursday 08 September 2005 16:21, Sven Luther wrote:
 --cut--
  Yeah, well, i did an apt-get install star and looked at the copyright file,
  so i am not sure what facts i have to believe then.
 
   http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/star
  .copyright
  
   Took about ten seconds to find out it was GPL before upstream relicensed
   and debian maint just copied that.
 
  Ah, ok, nice to know.
 
 Note that the latest upstream development version is star-1.5a67.tar.gz [1] 
 and is CDDL licensed with the following slight modifications:
 
 diff -Naur CDDL.Sun.txt CDDL.Schily.txt
 --- CDDL.Sun.txt2005-02-09 07:36:33.0 +0200
 +++ CDDL.Schily.txt 2005-02-10 01:41:21.0 +0200
 @@ -368,10 +368,9 @@
  DISTRIBUTION LICENSE (CDDL)
 
  For Covered Software in this distribution, this License shall
 -be governed by the laws of the State of California (excluding
 -conflict-of-law provisions).
 +be governed by the laws of Germany (excluding conflict-of-law
 +provisions).
 
  Any litigation relating to this License shall be subject to the
 -jurisdiction of the Federal Courts of the Northern District of
 -California and the state courts of the State of California, with
 -venue lying in Santa Clara County, California.
 +jurisdiction and the courts of Berlin Germany, with venue lying
 +in Berlin Germany.
 
 [1] http://sourcewell.berlios.de/appbyid.php?id=1036

Yeah, this is the CDDL with the modular choice-of-venue and choice-of-law.

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Dalibor Topic


Sven Luther wrote:

On Thu, Sep 08, 2005 at 03:55:56PM +0200, Dalibor Topic wrote:


Sven Luther wrote:


Notice that we already accepted a CDDLed program in debian, namely the star
packages which comes with this clause :

9. MISCELLANEOUS.


[snip]



The application of the
  United Nations Convention on Contracts for the International Sale
  of Goods is expressly excluded.


[snip]

That's my favourite bit of lawyerese in MPL-derivative licenses.

I wish they had expressly excluded the sharia law on software licenses 
as practised by the late Taleban ruling Kandahar.



So, is this non-free or not ?


It's incomprehensible legalese gibberish to a mere non-lawyer mortal 
like me, so I can't really say.


That's a general problem of MPL-derivative licenses: they were written 
by lawyers for lawyers, ignoring that most developers do not have an 
extensive background in intimate details of international contract law, 
or whatever the MPL (and by inheriting the clause, CDDL) tries to avoid 
getting bound by.


If you are into reading funny flamewars about CDDL from other groups, 
see the star vs. OpenBSD thread on open bsd lists this spring.



... but before taking such actions, we should probably decide on the CDDL.


I agree.

cheers,
dalibor topic


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Yorick Cool

On Thu, Sep 08, 2005 at 03:55:56PM +0200, Dalibor Topic wrote:
Dalibor  The application of the
Dalibor United Nations Convention on Contracts for the International Sale
Dalibor of Goods is expressly excluded.
Dalibor 
Dalibor [snip]
Dalibor 
Dalibor That's my favourite bit of lawyerese in MPL-derivative licenses.
Dalibor 
Dalibor I wish they had expressly excluded the sharia law on software licenses 
Dalibor as practised by the late Taleban ruling Kandahar.

Well actually, in most countries part of the UN, the convention applies by 
default to
international contracts. So it is quite relevant to exclude it, otherwise it 
may seriously
be contended that it is applicable.

Cheers,
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Rempart de la Vierge, 5
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Lionel Elie Mamane

On Thu, Sep 08, 2005 at 04:58:32PM +0200, Yorick Cool wrote:
 On Thu, Sep 08, 2005 at 03:55:56PM +0200, Dalibor Topic wrote:

 The application of the
United Nations Convention on Contracts for the International Sale
of Goods is expressly excluded.

 That's my favourite bit of lawyerese in MPL-derivative licenses.

 I wish they had expressly excluded the sharia law on software licenses 
 as practised by the late Taleban ruling Kandahar.
 
 Well actually, in most countries part of the UN, the convention
 applies by default to international contracts. So it is quite
 relevant to exclude it, otherwise it may seriously be contended that
 it is applicable.

Yes, but what does it *say*? What are the consequences of it being
applicable?

(
 And for my education: Does it apply to international intra-European
 contracts?
)

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Lionel


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Yorick Cool

On Thu, Sep 08, 2005 at 05:04:00PM +0200, Lionel Elie Mamane wrote:
Lionel
Lionel The application of the
Lionel United Nations Convention on Contracts for the International Sale
Lionel of Goods is expressly excluded.
Lionel
Lionel Yes, but what does it *say*? What are the consequences of it being
Lionel applicable?

Well, a whole bunch of stuff ;-) Basically, it clarifies outstanding matters in
which
countries have widely different conceptions of contracts: formation, hardship,
etc. It's
not bad, really, because it takes an unformal approach to contracts: no need
for written
contracts, usages are to be incorporated, etc. And it helps solve the typical
problems that
arise when two sets of law might apply.

Now, I'll have to add that to me, it shouldn't apply most of the time to
software
licenses because it applies
to *sale of goods*, and to me a software license has nothing to do with sale of
goods. But,
it seems that in some countries there are people who dispute that, so it might
be better to be safe than sorry, even though,
as I said, there's not much to fear in the convention.

My point was mainly that the Vienna Convention was more relevant than the
Wallonia act of 1963
on typewriting or whatever the original example of daft legislation was.

Lionel And for my education: Does it apply to international intra-European
Lionel contracts?
Lionel )

Yep, if they qualify as sale of goods.

For those interested, here's a link to the convention.

http://www.jus.uio.no/lm/un.contracts.international.sale.of.goods.convention.1980/doc.html

Cheers,
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Henning Makholm

Scripsit Lionel Elie Mamane [EMAIL PROTECTED]
 On Thu, Sep 08, 2005 at 04:58:32PM +0200, Yorick Cool wrote:
 On Thu, Sep 08, 2005 at 03:55:56PM +0200, Dalibor Topic wrote:

 The application of the
United Nations Convention on Contracts for the International Sale
of Goods is expressly excluded.

 Well actually, in most countries part of the UN, the convention
 applies by default to international contracts. So it is quite
 relevant to exclude it, otherwise it may seriously be contended that
 it is applicable.

 Yes, but what does it *say*?

There are thousands and thousands of words in the CISG. They cover
much ground in many areas of contract law. It is impossible to tell
which specific one of the CISG's 101 articles Mozilla's lawyers were
afraid of.

The context of the exclusion suggests that the target might be default
choice-of-law and choice-of-venue principles, but such rules are not
to be found in the CISG.

The very curious may read the full text of the convention at
http://www.admiraltylawguide.com/conven/saleofgoods1980.html

 What are the consequences of it being applicable?

The effect of the exception is probably very different in different
jurisdictions.

The CISG is a treaty between *governments*; some governments may have
implemented it by adjusting their national law such that it matches
the principles of the CISG (in which case the explict exclusion of
CISG is likely a no-op). Others may have special rules for
international contracts in their national law which just happen to
be compatible with the CISG (in which case the exclusion is probably
still a no-op). Still others have incorporated the CISG by reference
into their body of law. In the latter case only, the exclusion
probably means that a party is barred from appealing to the CISG to
justify an interpretation of the license text with which the pther
party does not agree. He can still try to argue his interpretation
based on other sources than CISG, of course.

One readily imagines that the exclusion has some well-defined meaning
under California law. However it is quite likely that it becomes pure
nonsense when somebody outside USA creates a MPL-derived license and
substitutes his own local jurisdiction for California.

  And for my education: Does it apply to international intra-European
  contracts?

That varies. For example, Denmark, Sweden, and Finland have opted out
of part II of CISG (pursuant to Article 92) and do not recognize it
for trade between the Nordic countries.

In principle the CISG would apply unless a better source of law
claims otherwise and takes precedence. Conflicting EU regulations
could be one such better source of law, but isn't necessarily - there
are several classes of EU regulations, and some of them may have
weaker force in some member states than a strongly implemented CISG.
(Isn't law fun?)


For the record, my own favourite piece of legalese is

| The Covered Code is a commercial item, as that term is defined in
| 48 C.F.R. 2.101 (Oct. 1995), consisting of commercial computer
| software and commercial computer software documentation, as such
| terms are used in 48 C.F.R. 12.212 (Sept.  1995). Consistent with 48
| C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June
| 1995), all U.S. Government End Users acquire Covered Code with only
| those rights set forth herein.

I have managed to find out what C.F.R. means and to locate the text
of the referenced sections, completely without becoming wiser about
what that text is supposed to achieve (and whether a private party
*can* at all stipulate a different application of the U.S. federal
administration's _internal_ purchasing regulations than would
otherwise be used) ...

-- 
Henning Makholm  I paid off ALL my debts and bought a much-needed new car.


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Andrew Suffield

On Thu, Sep 08, 2005 at 04:53:12PM +0300, George Danchev wrote:
 On Thursday 08 September 2005 16:21, Sven Luther wrote:
 --cut--
  Yeah, well, i did an apt-get install star and looked at the copyright file,
  so i am not sure what facts i have to believe then.
 
   http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/star
  .copyright
  
   Took about ten seconds to find out it was GPL before upstream relicensed
   and debian maint just copied that.
 
  Ah, ok, nice to know.
 
 Note that the latest upstream development version is star-1.5a67.tar.gz [1] 
 and is CDDL licensed with the following slight modifications:

Which constitutes a trademark violation at the very least (it's not
the CDDL any more) and quite probably a copyright one (the CDDL isn't
modifiable).

Yeesh.

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 `. `'  |
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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Thu, Sep 08, 2005 at 06:24:34PM +0100, Andrew Suffield wrote:
 On Thu, Sep 08, 2005 at 04:53:12PM +0300, George Danchev wrote:
  On Thursday 08 September 2005 16:21, Sven Luther wrote:
  --cut--
   Yeah, well, i did an apt-get install star and looked at the copyright 
   file,
   so i am not sure what facts i have to believe then.
  
http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/star
   .copyright
   
Took about ten seconds to find out it was GPL before upstream relicensed
and debian maint just copied that.
  
   Ah, ok, nice to know.
  
  Note that the latest upstream development version is star-1.5a67.tar.gz [1] 
  and is CDDL licensed with the following slight modifications:
 
 Which constitutes a trademark violation at the very least (it's not
 the CDDL any more) and quite probably a copyright one (the CDDL isn't
 modifiable).

Since the star upstream author is deeply involved with sun and the whole
opensolaris guys, and he told me on the opensolaris list that he did ask for a
modular choice-of-venue thingy and that none of the opensolaris guys from sun
told him differently, i clearly doubt there is any such problem :)

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread George Danchev

On Thursday 08 September 2005 20:24, Andrew Suffield wrote:
 On Thu, Sep 08, 2005 at 04:53:12PM +0300, George Danchev wrote:
  On Thursday 08 September 2005 16:21, Sven Luther wrote:
  --cut--
 
   Yeah, well, i did an apt-get install star and looked at the copyright
   file, so i am not sure what facts i have to believe then.
  
http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/
   star .copyright
   
Took about ten seconds to find out it was GPL before upstream
relicensed and debian maint just copied that.
  
   Ah, ok, nice to know.
 
  Note that the latest upstream development version is star-1.5a67.tar.gz
  [1] and is CDDL licensed with the following slight modifications:

 Which constitutes a trademark violation at the very least (it's not
 the CDDL any more) and quite probably a copyright one (the CDDL isn't
 modifiable).

Interestingly enough he has already been told that he violates the CDDL itself 
[1]. Also a good dispute starts here (as mentioned by someone above) [2] and 
what I was surprised was the vigorous pushing of star and cddl into the obsd 
tree.

So there are at least two kind of problems with cddl:
*modifications in a weird way - which doesn't fit into the spirit of BSD
*choice-of-venue and choice-of-law - floating sandy layers which could be 
dangerous for anyone on the Earth IMHO.

[1] http://archives.neohapsis.com/archives/openbsd/2005-02/0407.html
[2] http://archives.neohapsis.com/archives/openbsd/2005-02/thread.html#399

I feel that the author will convert sooner or later smake and cdrecord to cddl 
as a part of his anti-GPL campaign.

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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

On Thu, Sep 08, 2005 at 08:57:59PM +0300, George Danchev wrote:
 On Thursday 08 September 2005 20:24, Andrew Suffield wrote:
  On Thu, Sep 08, 2005 at 04:53:12PM +0300, George Danchev wrote:
   On Thursday 08 September 2005 16:21, Sven Luther wrote:
   --cut--
  
Yeah, well, i did an apt-get install star and looked at the copyright
file, so i am not sure what facts i have to believe then.
   
 http://packages.debian.org/changelogs/pool/main/s/star/star_1.4a17-3/
star .copyright

 Took about ten seconds to find out it was GPL before upstream
 relicensed and debian maint just copied that.
   
Ah, ok, nice to know.
  
   Note that the latest upstream development version is star-1.5a67.tar.gz
   [1] and is CDDL licensed with the following slight modifications:
 
  Which constitutes a trademark violation at the very least (it's not
  the CDDL any more) and quite probably a copyright one (the CDDL isn't
  modifiable).
 
 Interestingly enough he has already been told that he violates the CDDL 
 itself 
 [1]. Also a good dispute starts here (as mentioned by someone above) [2] and 
 what I was surprised was the vigorous pushing of star and cddl into the obsd 
 tree.

Yes, altough he told me that :

  1) Debian has accepted the CDDL as DFSG free, and as proof the star package
  is in.

  2) Any argument i may have are only the lame repetition of the opinion of a
  single person here on debian-legal.

 So there are at least two kind of problems with cddl:
 *modifications in a weird way - which doesn't fit into the spirit of BSD
 *choice-of-venue and choice-of-law - floating sandy layers which could be 
 dangerous for anyone on the Earth IMHO.
 
 [1] http://archives.neohapsis.com/archives/openbsd/2005-02/0407.html
 [2] http://archives.neohapsis.com/archives/openbsd/2005-02/thread.html#399
 
 I feel that the author will convert sooner or later smake and cdrecord to 
 cddl 
 as a part of his anti-GPL campaign.

Oh, he is the cdrecord guy.

Friendly,

Sven Luther


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

2005-09-08 Thread Marco d'Itri

On Sep 08, Sven Luther [EMAIL PROTECTED] wrote:

   2) Any argument i may have are only the lame repetition of the opinion of a
   single person here on debian-legal.
Indeed, the choice of venue is a fee argument is just that: an
opinion which has at best no clear roots in the DFSG, therefore it
cannot make a license non-free.

-- 
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Marco


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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...