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  Re: Theo de Raadt on Relicensing BSD Code (mod -3/37)
by Anonymous Coward ( on Fri Sep 14 03:04:01 2007 (GMT)
  I'm studying to be a lawyer right now and, AFAIK, Theo's view of the law is factually correct. In any event the actual substance of the law is mostly beside the point. I seriously doubt Reyk or the Linux developers want to go through the hell that is transnational copyright litigation. If it can be avoided, I expect that it will be.

In any event, with all this talk of suing in Germany, people seem to have missed some of key issues (or at least "key" from a litigator's prosepective).

1. In order for Reyk to sue, he has to sue in a court with personal jurisdiction over the defendants (the Linux developers who he is accusing of violating his copyright). European personal jurisdiction laws are generally pretty stingy and it might be very difficult to drag them to court over there.

2. Even if you get into court in Germany, there is still a choice-of-law issue, and it is not assured that the court would actually apply German law instead of say, US law. The rules about what country's law to apply are generally pretty complicated and vary from country to country so answering this question (and the jurisdictional one above) would require an examination of the German Code of Civil Procedure and seeing how German courts have treated the relevant provisions in the past. I'm not in any position to do this because I can't read German.

3. Even assuming Reyk could sue in a German court, it might be easier, quicker, and/or tactically better to just sue in the US anyway because of procedural differences which may play in Reyk's favor.

4. Reyk's ability to sue in a German court could be imperiled if a US court could somehow get jurisdiction over him because that would allow the Linux guys to beat him to the draw by filing a suit in US court requesting declaratory judgment and an anti-suit injunction (which would bar Reyk from suing in Germany). If they did this than Reyk will have to come to the US to either do the lawsuit or he'll have to try and get their case dismissed for forum non conveniens (which given the nature of the case, may prove difficult).
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