Politics-Free Licence ;)

[Chuck Swiger]

On Jun 28, 2007, at 6:38 PM, Simon Phipps wrote:
>> Worse for whom?
>>
>> There's a reason why the GPL makes a great deal of effort to spell  
>> out terms that might be assumed in one system of law but might not  
>> in other, because they (meaning the FSF and others) want the  
>> license to have the same interpretation worldwide.  This goal may  
>> not be perfectly achievable because some jurisdictions prevent the  
>> disclaimer of warranty, et cetera, but nobody who writes Free  
>> Software or OpenSource software *wants* to be sued or deal with  
>> related legal crap in a completely foreign jurisdiction to them.
>
> Right.  This we agree about, I think. I'm saying that, in cases  
> where the license has not been honed by many global legal minds to  
> have layered and nuanced meaning (as the GPLv3 has been, for  
> example), it is smart to tell the reader what system of law you had  
> in mind when you were writing. That way, all readers can see what  
> the license means and not have to gain local knowledge of the case  
> law and semantics on a use-by-use basis.

There are times when attempting to be more precise has a positive  
result such as improved understandability or clarity, but,  
regrettably, this is not always the case.

Sometimes attempts to provide more context and detailed semantics  
result in something that is too complex to be readily understood and/ 
or is susceptible to manipulation where those who know the precise  
jargon and boundary cases can take unfair advantage of normal folk  
who interpret words in a straightforward fashion using their normal,  
commonly-understood meaning.

> Thus, I assert that /either/ there should be a fixed statement of  
> the system of law assumed by the license, or none at all.   
> Encouraging the language of the license to be variably interpreted  
> unsettles lots of people (I met some of them at DebConf last  
> weekend for example).

I believe I can understand this concern, but the real difficulty of  
interpretation and the reason why people want to know "the system of  
law assumed by the license" is a direct consequence of there not  
being a single, unified, consistent, understandable, fair, and  
universal legal framework which applies everywhere.

The fact that variable interpretations exist is not something I've  
chosen or would prefer to happen.

> Of course, as others on this thread have pointed out, what actually  
> happens when one finally reaches court may be unaffected by all this!

Certainly.  Even people who list a choice of venue, jurisdiction,  
governing law, and so forth might find themselves involved in  
litigation elsewhere regardless of what their license states.

>> If someone wants to sue me over software which I've made public  
>> for everyone to share, modify, and use, the least they can do is  
>> show up and do so in the courtroom in my neighborhood, rather than  
>> halfway around the world.
>
> This is choice of venue, and is a different topic. I disagree with  
> your interpretation of what a choice of a legal venue in license  
> means (I think the SocialText folks have got it right in their most  
> recent submission, FWIW), but I do feel that more people will be  
> more happy with a license that makes no attempt to choose a venue.

Really?  Do you honestly feel that the following from the CPAL "got  
it right" in a license which is nominally going to be used world-wide:

> 10. U.S. GOVERNMENT END USERS.
>
> The Covered Code is a "commercial item," as that term is defined in  
> 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer  
> software" and "commercial computer software documentation," as such  
> terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48  
> C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June  
> 1995), all U.S. Government End Users acquire Covered Code with only  
> those rights set forth herein.
>
> 11. MISCELLANEOUS.
>
> This License represents the complete agreement concerning subject  
> matter hereof. If any provision of this License is held to be  
> unenforceable, such provision shall be reformed only to the extent  
> necessary to make it enforceable. This License shall be governed by  
> California law provisions (except to the extent applicable law, if  
> any, provides otherwise), excluding its conflict-of-law provisions.  
> With respect to disputes in which at least one party is a citizen  
> of, or an entity chartered or registered to do business in the  
> United States of America, any litigation relating to this License  
> shall be subject to the jurisdiction of the Federal Courts of the  
> Northern District of California, with venue lying in Santa Clara  
> County, California, with the losing party responsible for costs,  
> including without limitation, court costs and reasonable attorneys'  
> fees and expenses. The application of the United Nations Convention  
> on Contracts for the International Sale of Goods is expressly  
> excluded. Any law or regulation which provides that the language of  
> a contract shall be construed against the drafter shall not apply  
> to this License.
...?

If neither the author nor the litigant in a hypothetical dispute is a  
"citizen ... or registered to do business" in the USA, all of the  
verbiage above becomes not relevant or even ill-defined.  How is this  
any better than my take on it, which is that the author gets to  
select the venue and governing law?

Please note that I'm neither a lawyer nor a patent-troll, and I've  
never attempted to forum-shop (ie, having my patent dispute or other  
suit be filed in the Eastern District of Texas, for example)-- my  
primary concern is to avoid having someone *else* try to forum-shop  
to gain advantage.  And yes, that means when I release software to  
the world under open source terms, I really expect other people who  
choose to use that software to honor the notion that there is no  
warranty, regardless of whether their local jurisdiction claims that  
warranties cannot be disclaimed.

Frankly, I was happier when a license like the following was good  
enough:

> "THE BEER-WARE LICENSE" (Revision 42):
> <phk at FreeBSD.ORG> wrote this file.  As long as you retain this  
> notice you
> can do whatever you want with this stuff. If we meet some day, and  
> you think
> this stuff is worth it, you can buy me a beer in return.   Poul- 
> Henning Kamp

...and it's thirty times smaller than the CPAL, and more than 160  
times smaller than the GPLv3.

-- 
-Chuck