LAB Public License proposal

[DJ Anubis]

Le jeudi 18 Mars 2004 03:31, Rod Dixon, J.D., LL.M. a écrit :

> I do not see an OSD issue for here. Consequently, I recommend approval of
> the CUA Office Public License.  This license does raise interesting
> questions about what appears to be a choice of law matter. I am not sure
> why French law is presenting the problem the poster says it does, but
> software distributed on the Internet seems capable of a simpler solution
> than drafting licenses in the manner proposed by the current draft of the
> CUA Office Public License.   

Sorry if my legal english is not very good.

Questions about choice of a law matters, in many ways. Very important 
discussions raise here if France about the legality of most Free or Open 
Source licenses.

Linux Magazine France, a French Linux monthly publication, raises some issues 
with Free and Open Source the licenses must cover to be valid. Internet 
distributed software raises another issue for those lawyers.

French law is somewhat complex, as decisions come over decisions, and we have 
to comply with some judicial labyrinth whenever we have to write down some 
contractual documents. Licensing is one of the most complex of them.

A confusing L.131-3 from French Intellectual Property act tells:
"transmission of author's rights is subornidated to the condition that each 
and every transmited right be distinctly mentioned in the session act and 
thet exploitation domain of each transmited right be delimited for its 
destination, place and duration."

According to this text, GNU GPL is silent about this question. As a result a 
court can invalid this license and licensee will have on programs actions not 
legal in such a case.

A court decision, while not dealing strictly with free or open source 
software, hits the real problem. A french court decided that a right 
transmission from an author to an editor was illegal and invalid because 
session duration was longer than the one imposed by law.
The contract was nullified as "author's will cannot overide law".

The same could be applied if a French author, living in France, decided that 
applicable law would be Californian courts, which would be considered illegal 
by law.

> After acknowledging the intentions of the 
> drafter of the CUA Office Public License, sections 4, 10, 11, and 12 seem
> oddly worded. For example, it is difficult to unravel the meaning of this
> phrase from section 12: "This LICENSE shall be governed by French law
> provisions (except to the extent applicable law, if any, provides
> otherwise), excluding its conflict-of-law provisions"
>
> Except when?

CUA Office Public Licence and LAB Public License are equally oddly worded. For 
LAB license, French wording is even worse, as some lawyers only terms are to 
be introduced for the license be valid.

conflict-of-law provisions is a very nasty judicial wording which Europe might 
face soon (mainly France, BTW) if EEC harmonization imposes changes in 
juridictions and texts. In such a case, objections shall be laid to EEC 
Central courts.

> At any rate, sections 4, 10, 11, and 12 should 
> be reviewed to eliminate terms that do not meaningfully add to the
> drafter's intent. This license should be easier to read than it is now. 
> Since I am not providing legal advice, I cannot be more specific.  You
> would benefit from having your legal counsel review the terms of this
> license before finalizing the draft.

Well, ease of reading is good, but lawyers do not think of such a user ease. 
They think in legal obligations and other odd matters, as they would have to 
support this in case of dispute.
Trying to deal with contradictory laws is not an easy game and formalism is 
required by all courts.

This introduces this level of complexity. We had to dig in most OSI approved 
licenses to find one which could be adapted. Most licenses come from USA 
entities, without this international legal intricacies. This is why we used 
CUA model as draft for our work.

-- 
JCR
aka DJ Anubis
LAB Project Initiator & coordinator
--
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