Question regarding a new local license approach

[Jason White]

Chris Yoo writes:
 > Thank you Walter for raising this issue. Speaking from an Australian
 > perspective, I have found that disclaimer clauses in most currently
 > certified US-based licences are problematic under Australian law. These
 > issues were identified by Ian Oi in his submission of the OZPBL for approval
 > (See
 > http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:9262:200412:jneejnfcgpacdjcfbo
 > kf), whereby disclaimers containing wording inconsistent with the Australian
 > Trade Practices Act may result in the whole disclaimer (and potentially the
 > whole licenece in which the disclaimer is contained) being void and
 > unenforceable under Australian law. 

This is a good illustration of why provisions should be made for
severance in the event that part of the licence is found to be
unenforceable.
 > 
 > On a more general note, should the OSI decide to take a restrictive approach
 > to licensing, how does it plan to deal with the requirements of local
 > jurisdictions?

The best solution would be to write licences that are regarded as
enforceable, and as having the desired legal effect, in as many
jurisdictions as possible. Obviously this demands significant legal
research and effort. Unless this is done, there is a strong argument
for treating local legal requirements not satisfied by an existing
licence that meets the needs of the licencor as providing prima facie
justification for drafting, and seeking approval of, a new licence.

For the record, I am not persuaded that licence proliferation in
itself is a problem worth solving. Mutually incompatible reciprocal
licences do create difficulties for software authors and there has
been excellent discussion of that issue on the mailing list; but
beyond this, nobody has offered a convincing argument for the alleged
gravity of the supposed proliferation "problem" that some believe
warrants changes in the approval policy.