Re: FSDG-compatibility of APSL-2.0

[Maxime Devos]

(zimoun pointed out that I didn't actually send this mail, apparently
it never left ‘drafts’.  Anyway, just sending this e-mail for
completeness; unless someone comes with a new insight or something the
discussion appears to be done for now.)

Philip McGrath schreef op do 16-06-2022 om 02:21 [-0400]:
> Still, I'm in favor of the status quo. I think fragmentation over 
> license policies has a significant cost for the community, and this
> does not seem to be sufficiently problematic to be worth a schism.

Maybe, but I'm not aware of any method to revise the decisions of the
FSF.

Philip McGrath schreef op do 16-06-2022 om 02:21 [-0400]:
> I'm not a lawyer, so take this paragraph lease seriously, but I also 
> think the concrete impact is less than it might first seem. We accept 
> choice-of-forum provisions like the one in MPL-2.0 ("Any litigation 
> relating to this License may be brought only in the courts of a 
> jurisdiction where the defendant maintains its principal place of 
> business and such litigation shall be governed by laws of that 
> jurisdiction, without reference to its conflict-of-law provisions.") [8] 
> which would require you to sue Apple in California

I consider this to be a much milder clause than the clause in APSL-2.0:
also IANAL, but what it looks like to me:

1. APSL-2.0: Apple can legally drag you (*) to California to be sue you
   there under California's law and everything that entails.
2. APSL-2.0: Likewise, you can drag Apple to the California to sue
   Apple there.

I don't see any reason to do (2) here.
What I consider problematic here, is (1).

Contrast this to MPL-2.0 (for simplicity, this assumes Apple uses the
MPL, feel free to replace by Mozilla or whatever):

1. If Apple sues you, they have to sue you in _your_ country.
2. If you sue Apple, you have to sue in Apple's country.

This seems rather symmetric to me, and while sometimes I might disagree
with $foreign_country's or $local_country's laws, this seems a rather
reasonable system to me.

(*) unless $your_country's legal system disagrees on this choice of
forum provision.

> We also accept licenses like the GPL that don't have any choice-of-
> forum provisions:
>
> the law of "personal jurisdiction" and venue is complex, but I would
> not be shocked if Apple could sue you in California in this case. My
> impression is that it would be very difficult to require something
> like a "freedom not to litigate in California" (especially so for all
> possible values of "California") without rejecting many 
> currently-accepted licenses.

My problem is not a ‘freedom to not litigate in $foo’, but rather ‘no
cherry-picking jurisdictions to whatever is convenient for limiting the
freedom the most’.

Sure, if it comes to a conflict between party X and Y, the legal system
will need to somehow decide on a forum, but no need for this power
asymmetry.

In this case, MPL-2.0's clause seems acceptable to me, but APSL-2.0's
doesn't.

TBC, if two parties of about equal power choose a forum to avoid
potential future problems, ok, but this doesn't seem to be the case for
the APSL-2.0.

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