LAB Public License proposal

[DJ Anubis]

Le jeudi 18 Mars 2004 11:20, Mahesh T. Pai a écrit :

> Hmm. Same situation pervails in the Common Law tradition too. You will
> be interested  to know  that in  law school, we  were taught  that the
> Civil Law  tradition (and France  was almost always the  example) does
> not  rely  much on  what  the  Common  law tradition  calls  `judicial
> precedent';  `precedent'  is legalese  for  earlier  decisions by  the
> judiciary.

Civil Law Tradition is what is called "jurisprudence" in France. France always 
put laws over laws, so the result can be a nightmare, even for rally trained 
lawyers. Courts can decide on one or other of all the texts, and sometimes 
they even decide using "jurisprudence" modified by a law extension.
Sounds confusing enough.

>  > 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."
>
> Is  this  the  official  translation??   (Will the  French  ever  have
> `official' translations of their laws?? *g*)

Not offical, as sounds there will never have official translations of the huge 
law books valid here :-(
A full list is however available (in French) on the official government site:
http://www.legifrance.gouv.fr/WAspad/ListeCodes

> Does  this translate  mean  `granted rights  have  to be  specifically
> enumerated; and the  granted rights may be used  only for the purpose,
> time and place for which the grant is made'??

Yes, this text (and jurisprudence seems to enforce) that:
1. each and every grant must be enumerated and justified.
2. Granted rights may only be used for the written purpose and no other, be it 
implied.
3. Granted rights are only valid for the described place. This is why I used 
'world wide' in draft. But we may have to change this when we finish digging 
in French jurisprudence about the 'world wide' legality on contractual basis.
3. Granted rights must be bounded in time. A new granting agreement must be 
signed every 3 or 5 years (jurisprudence always choose between those two 
values, I don't know why).

> Do the  French have a doctrine  of estoppel??  Is it  possible for the
> French licensee to rely on the  statements in the license as a promise
> made by the  owner of copyright?? Or is that  all promises relating to

French licensee could try to rely on statements in the license as a promise 
made by copyright owner. But, if all the legal stuff is not in the license 
text, the judge will invalidate the license first, as it is stated in first 
article of the base act (Civil Code):
"No one is not supposed to be unaware of the law".

> (a) enforcement of a right (b) permissions in a copyright work
>
> should invariably conform to  the Intellectual Property Act you quoted
> above??

They should conform, as jurisprudence showed too generic wording is rejected 
by courts.

>  > A  court decision,  while not  dealing strictly  with free  or open
>  > source software, hits the real problem. A french court decided that
>
> I guess that this will still apply to F/L/OSS.

Sure, it will apply.

> Will the whole contract / license be invalidated?? Or will the court
> just ignore only the provisions relating to choice of law??

This is a real issue, as courts assume contracts are always signed in 
conformance with the originating law. Say a french author/vendor having his 
house/business in France must conform to french laws when granting/selling.

But when you are licensee, if the grantor is german, american, chinese, the 
grantor country law applies.

A contract stipulating different laws is judged fully inapplicable. Court just 
not ignores provisions to choice of law, but thinks grantor tried to overcome 
law, and thus can be prosecuted.

And for Internet, the situation will soon become even worse with the new LSI 
(A brand new law about security). Wherever you put your servers, being french 
citizen and resident makes you responsible for whatever is published or 
distributed via Internet.

> Here  (in  India),  choice  of  law  provisions are  read  in  a  very
> restricted way.  If the facts  of the case  do not, in any  way confer

Sounds easier than in France.

> Why do you need a choice of  law clause in the first place?? (sorry if
> you have already answered this - I have not followed this thread toooo
> closely).

Maybe this message will give you the answer.

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