Dear All,
FWIW, I finally answers to some of my questions back from my lawyer. In
summary, they are:
1. Don't set the jurisdiction to Virginia, or even the US. Leave it up to
the disputants at the time of a dispute. Also, provide a good international
court for the case where they can't agree on a court. This allows two US
people to avoid a trip to the UK. Finally, despite what Ned Lilly said,
setting the court to Virginia will either involve a trip there OR involve
paying for a Virginia law expert to testify.
2. People who provide the software (Marc?) and/or apply patches have a
liability as well, so we need to limit that in the license. I would guess
changing the word, 'developer' to 'any contributor or provider' might
suffice, but I have not asked. The supply of Postgres is distinct from the
good itself, so Marc can easily put conditions on his download sites if he
so chooses.
3. Using and copying PG implies an agreement to the current BSD licence
provided the licence conditions are adequately drawn to the persons
attention. Hence Ned's popup notice. My lawyer supports this notion. It
*really* might be a good idea putting a notice out the first time a new
user runs psql...
4. Assuming the license is visible, then submitting mods to PG puts those
mods under the same licence. Copyright is retained by the authors. He
further suggested that as an extra insurance, when accepting mods you
should send a copy of the license terms to the submitter. I presume people
with direct CVS access should be asked to sign something about not
submitting other people's code without sending conditions etc etc.
5. Once again, provided people are made aware of the license terms, noone
can remove the right to use software once submitted, since it has been
released under the BSD.
6. The proposed indemnity is totally inadequate under Australian law, and
probably UK law. Here it is not legal to remove all warranty, only limit
damages, and usually only to something reasonable (eg. fixing the bug in
PG, but not fixing the damage it caused). Where we can't exclude liability,
it needs to be limited to replacing the software. This probably has issues
with the various supported/unsupported ports.
7. The discussion is largely academic since to change the agreement we
would have to get UCB + anyone who develops for or uses PG to agree to the
changes, unless we argue that we were not aware of the license
agreement...;-}. One alternative is to create a fork project where *new*
code comes under the new license and exiting code + patches to existing
code come under the old license. Probably the best alternative is to adopt
the latest Berkeley license, which I imaging UCB would approve, but we'd
still need to at least write them a letter and announce it to the world.
I'd also vote for adding a new clause limiting liability in those places
where waranties can not be waved.
That's about it.
---------- More complete text of jurisdiction issue -------------
>Q1: Ned Lily (the lawyer) suggested that without a jurisdiction, then the
>plaintiff can shop around for a jurisdiction - how true is this?
"To a degree, but each country' rules of private international law will
determine applicable law and whether a particular forum can be used for
settling disputes (Some will accept disputes which have no connection with
them others will not). I suggest choice of law is left to parties to
dispute at the time of the dispute, but if they can't agree then use
English Law (not UK Law as there are several eg Scottish law) as it is
perhaps most widely accepted internationally. In a normal international
sale the parties would choose
the applicable law subject to which has the strongest bargaining position.
Unless very large sums are involved a choice of jurisdiction for
international dispute settling is an academic exercise. However I suggest
the same as above: English if the parties can not agree. With elected
State Judges and each party bearing its own costs the US system is too open
to abuse. Whilst it allows an impecunious software writer to sue a large
corporation, what if an impecunious software writer chose to sue you in a
US State court? Given that you are freely providing software and allowing
people to do anything with it, isn't it best to discourage litigation by
making it risky if you do not have a good case and expensive to start. An
impecunious software writer would have little to fear from a large
corporation as she/he would have no assets worth suing for. Since the
world's most litigious people live in the US make them go overseas before
they can start any! Then only important issues will be fought out and will
only be supported if it is worth a fight. It's better to get on with
writing software than depositions."
Also,
"There are two stages: choice of law and choice of dispute forum. How many
are you agreeing to? Virginia law is not well known internationally and I
am sure no one wants to have to seek advice on what Virginia law will do to
their agreements except Virginians. See earlier comments.
If there are aspects of the law you want, then include them in the
agreement (ie. make it longer). Even if it is only a restatement of the law".
My legal adviser has negotiated several international agreements, and is
well aware of the issues they entail. His advice, is:
"I usuaully go straight for a neutral forum, but a common law based one as
that is the best system. But at least aim for well recognised
internationally oriented system that is used to handling international
disputes that is neutral AND never go to a system where the "home team"
elects the judges".
----------------------------------------------------------------
Philip Warner | __---_____
Albatross Consulting Pty. Ltd. |----/ - \
(A.C.N. 008 659 498) | /(@) ______---_
Tel: (+61) 0500 83 82 81 | _________ \
Fax: (+61) 0500 83 82 82 | ___________ |
Http://www.rhyme.com.au | / \|
| --________--
PGP key available upon request, | /
and from pgp5.ai.mit.edu:11371 |/
