Re: Gentoo Linux copyright / CDDL question

[Drazen Kacar]

Casper H.S  Dik wrote:
>  Drazen Kacar <dave@fly.srk.fer.hr> writes:
> 
> >Eh? But it says:
> 
> >   You agree never to assert against Sun or its licensees or transferees
> >   any moral rights therein.
> 
> >That's void under my local copyright law, but the provision certainly is
> >giving copyright rights away. And then:
> 
>  Why is that void in you rlocal law? (Just interested).

On principle, for the same reason why slave trade is illegal. In
jurisdictions which have them, the lists of rights which fall under
moral rights slightly differ, but in general those rights are not
something that has market value.

The usual one is the right to be identified as an author of the work in
question.

But then there are others. I'm not good at translating legal terms, but
there's a provision which says that the author has moral right to
prevent circulation of "butchered" derivations. For example, a film
producer might decide to add slimey happy end. No can do, unless the
director says it's OK. Contractual provisions which negate that right
are void.

In case of software, the same provision means that it's possible for the
author to stop circulation of a derivative work which happens to be so
buggy that it's practicly unusable and severly harms author's
reputation. (This is my interpretations, there were no court cases, as
far as I know.)

And that's a right I'd like to retain. :-)

>  I'm not sure it is giving rights away; you retain the right to copy,
>  modify, etc; but you share that right with others.

Sharing is not a problem. Inability to put an end to the abuse is.

> >   This Agreement shall be governed by the laws of the State of
> >   California and applicable U.S. Federal law, without application of
> >   choice of law rules.
> 
> >That, in case one does not live in the State of California, happens to be
> >a pretty large giveaway.
> 
> 
>  Please read:
> 
>       http://blogs.sun.com/webmink/entry/choice_of_venue
> 
>  before you think that this is a large giveaway.

I still think it's a large concession. But there's more than one issue.

>  (Exec. Summary: If the California courts have no jurisdiction, this clause
>  does not change that)

OK, let's start with that. The article says so, and the article is
probably correct, but I don't have a problem with the choice of venue
(that's what the article is all about). I have a problem with the
jurisdiction. Most countries don't have legal machinery which is
compatible with other countries, up to the point that other legal
systems are treated as non-existant.

There are practical reasons for that and I recognize them, but they
become my problem only if I agree for them to become my problem.

As far as I can see, the article assumes both parties live (trade, make
business or whatever) in the USA and then goes to say that California
courts have no jurisdiction unless both parties live, trade, make
business or whatever in California. That's all nice and fine, but what
if the parties don't live in the same country at all?

Side note: bilateral international treaties might or might not exist (no
way to tell, because I don't know in which coutry I'll live ten years
from now). There are multilateral international agreements about
jurisdiction problems which have a higher probability of being in
effect, but a lot of software licenses I've seen specify that they shall
not govern the case. Wonder why. (This is not related to the case in
question, I'm just being a smart-ass).

My second issue with the article is that it's about CDDL and not about
contributor agreement. When the CDDL was in draft I complained about
jurisdiction provision here, Joerg said he complained also (to Sun) and
that the issue would be taken care of. And it was, in a way. The CDDL
was changed to say that the party which is making the software available
will specify the jurisdiction in a note distributed with the software.

That isn't that bad and certainly makes CDDL more usable for parties in
other jurisdictions.

And it's not entirely unfair that Sun should be able to specify
jurisdiction for the software it's making available to other parties.
Since it's not selling, so trade laws probably don't apply.

However, in this case I'm supposed to be the party which is making the
software available to the other party, but I can't pick the
jurisdiction. I don't like it.

-- 
 .-.   .-.    Yes, I am an agent of Satan, but my duties are largely
(_  \ /  _)   ceremonial.
     |
     |        dave@fly.srk.fer.hr