Subject: RE: For Approval: Microsoft Permissive License
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Sun, 30 Sep 2007 20:30:37 +0200

Rick Moen [mailto:rick@linuxmafia.com] wrote:
> Quoting David Woolley (forums@david-woolley.me.uk):
> 
> > In intellectual property law cases brought by large companies against
> > small organisations, the decision of the courts is almost irrelevant as
> > the cost of defending the case is enough to put off the small one.  This
> > is why trivial patents are such a problem.
> 
> We are unlikely, here, to be able to address the problem of abuse of the
> courts.

In almost all cases (at least in democratic countries), these are not abuses
by courts, but only by lawyers profiting from their unbalanced rights
permitted by laws. Courts andjudges are limited in their action by laws and
can't reject rights granted to defendants by laws, even if they are abusing
it.

No law for example limits the amount of money spent in defending a case,
these being allowed to exceed without any limitation the amount of money
involved in the dispute, and no judge can decide about such limitation;
consequently, lawyers are abusing these rights as far as their clients can
pay them (they absolutely don't care about the involved charges they create
to their opponents in a (fair?) trial.

The only limitations are about procedures (and there exists some laws
protecting courts from abuse of procedures, because this involves very
costly charges to the public, not always covered by the defendants). So
after some time, a decision must be made, and the disputing parties will
have to share the charge of the trial: but even in this case, if the smaller
defendant has to support this share equally, this will be clearly unbalanced
in favour of the bigger one.

In other words, the smaller defendant almost always loose in a commercial
trial. (There are other procedures for criminal trials, or trials against
the government, that grant larger rights to individual defendants, to better
balance the rights, and limiting the usage of procedures by the larger
defendant, but such things are not found in commercial trials, where a
public court, acting as a neutral third-party with no interest for any of
the two defendants, is requested to make an arbitration.

Today, for many of these trials, the solution of ombudsmen (mediation) is
far better for all defendants: in such simplified procedure, NO decision is
made by the ombudsman directly, but the ombudsman helps within a fair
negociation, made without requiring the presence of a lawyer. Both parties
are making concessions and are signing a mutual agreement or contract, that
is then officially registered by the ombudsman. The case will go to a court,
waiting for a decision by a udge, only if such mutual agreement can't be
made.

In every trial, such arrangement should always be allowed at any time, to
put an end to the trial (and in this case, no judge decision should
interfere, unless the content of the contract is proven later that it is
unbalanced and inapplicable by one party).