Question regarding a new local license approach

[Alex Bligh]

--On 11 March 2005 20:33 +1100 Jason White <jasonjgw at pacific.net.au> wrote:

> 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.

Severance alone may not do the trick, because it may completely exclude any
limitation of liability/warranty. That's why we have we have exclusion
clauses that exclude liability/warranty "to the maximum extent permissible
by law", and/or written in multiple individual cascading sections.

I think it is a fair point that OSI approved licenses may (1) be
overly jurisdiction specific (i.e. have terms drafted for specific
jurisdictions), and (2) may have jurisdiction/governing law/venue
clauses in which are not what the licensee wants. However, if one
is to avoid proliferation, it seems to me the way forward is not
to generate a dutch version, an australian version, an English
version etc. of each license, but at least to attempt to draft
clauses which are jurisdiction neutral, and do not contain provisions
known to be antagonistic to "reasonable"(*) jurisdictions.

If the OSI is going to recommend licenses, I'd suggest it doesn't
recommend licenses with jurisdiction specific stuff in.

I'd point out that a whole host of current licenses would fall by
the wayside here, as they either specify governing law or jurisdiction,
OR they have jurisdiction specific stuff in (the most common being
the provision dealing with sales to the US government and the
definition of commercial software - if we had equivalents to that
for - say - 90 countries, the license would be rather long).

(*)=now there is a source of controversy if ever I saw one.

Alex