[License-discuss] in opposition of 'choice of law' provisions in FOSS licenses

[Bradley M. Kuhn]

Pam,

Pamela Chestek wrote at 08:40 (PST) today:
> I'm taking the next step of moving the discussion to
> license-discuss. Please continue the discussion there.

That makes, sense, although as a point of order, I think you might have
typo'ed your email moving the thread.  Your post moving it didn't end up on
license-discuss because it went to <liscense-discuss at lists.opensource.org>
[sic] and I don't see your email in the archives.

Fontana seems to have already started replying on <license-discuss>; my
reply below is a reply to
https://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/2022-December/022041.html


I had written on license-review on Monday:
>> TL;DR: I oppose 'choice of law' clauses in FOSS licenses because:

>> * They create an inherent bias about the software (and its license) in
>>   places where the folks are unfamiliar (or just plain daunted by) their
>>   understanding of the chosen law jurisdiction.  (i.e., a potential
>>   contributor in the USA reading the license and thinking: “I've never been
>>   to Germany, I don't know what the laws are like there.  Is it dangerous
>>   for me to even contribute to this project?  How do I figure that out?  I
>>   guess I have to hire a lawyer to ask …”) This is somewhat a perception
>>   issue, but the legal terms *must* appear welcoming to potential
>>   contributors for FOSS to succeed.

>> * FOSS licenses should be (and usually are) designed to operate worldwide
>>   on the same text, and treat all jurisdictions equally.  No matter where
>>   you chose the law — *even if* there is widespread consensus that it's a
>>   good choice, it will *still* annoy/offend/confuse some would-be
>>   contributors, adopters, and users who may well have legitimate dislikes
>>   of that jursdiction's laws.  You inherently bias your community's
>>   participants to people in that jurisdiction or those who like that
>>   jursidiction's laws.

>> * Jurisdictions can easily gain precedent/new laws or other problematic
>>   policies that may be antithetical to FOSS, its use, its adoption, and its
>>   development.  FOSS license text usual live for decades, and contributors
>>   and users must operate on that text without change for decades.  The best
>>   way to mitigate this very real risk is to *not* chose a law jurisdiction
>>   up front, for everyone in your community, forever.

>> * License stewards are generally based “somewhere”.  They're almost always
>>   going to have a bias for their own jurisdiction, which will proliferate
>>   different choices of law (inherently incompatible), and possibly
>>   promulgate non-FOSS friendly laws throughout the FOSS ecosystem.
>>
>> * Historically, we have seen no evidence that 'choice of law' aids
>>   individual contributors, users, or small redistributors.  It has been
>>   argued that it can help large corporate redistributors, but only
>>   hypotheticals have been put forward.

Eric Schultz replied (on license-review) at 21:56 (PST) on Monday:
>>> While I have no desire for choice of law clauses and they seem a headache
>>> from the user standpoint, I'm not sure this discussion is fair to the
>>> submitter.

>>> We already have a number of approved licenses with a choice of law
>>> clauses. … 

>>> That said, it would make sense for OSI to guide this related discussion
>>> around choice of law clauses into a more productive, diverse forum for
>>> evaluating this from a truly worldwide perspective.  I look forward to
>>> their leadership on addressing this and other issues around the OSD.

I replied this morning to Eric on license-review:
>> First, is there an approved license that chooses a *specific*, *named*
>> jurisdiction? (There may be, it's just hard to find if there is, as OSI's
>> website seems to have no discussion of “choice of law”, and/or why some
>> licenses have it and others don't?  Or did I miss it?)  The “precedents”
>> mentioned so far in this thread: CDDL (in some ways worse, in some ways
>> better) has a “each new project chooses its own jurisdiction”; Mike
>> already noted that EPL has dropped is “choice of law” clause; Larry
>> already noted that his license anchors choice of law to “Licensor”
>> location.

Fontana answered this morning (here on license-discuss):
>>>> Probably the most significant one historically is MPL 1.1 and its
>>>> ancestors (California)

Ugh, I'd forgotten that, but of course glad it's fixed!  Was there anything
during the MPL redrafting public process that discussed this issue?  The
discussion so far (over on license-review) has hinted at a lot of lost
cross-institutional memory about “choice of law” clauses.  You probably
remember, Fontana, as I do, that it was discussed during GPLv3 and dismissed
rather categorically.  I thus wonder if there are records of Mozilla
Foundation's discussion about removing their “choice of law” clause that we
could reference and archive in this thread for posterity?

(cf: Mike's post to license-review about Eclipse Foundation giving up
“choice of law” for EPL a few years ago:
https://lists.opensource.org/pipermail/license-review_lists.opensource.org/2022-December/005283.html

>>>> and, without checking, I'd assume most or all of its mostly forgotten
>>>> OSI-approved vanity license derivatives.

Well, admittedly the “Open Logistics License” from the “Open Logistics
Foundation” looks a bit old-school vanity-style to me — since the name is
either designed to promote the name of the org, or it's designed to make it
seem like it's the only appropriate license for work on the general topic of
“open logistics”.  So, I guess vanity licenses are “in” again? 😆

I'd written further this morning:
>> Second, while you [Eric] do point out a problem with the OSI process that
>> is indeed unfair to submitters, the unfairness is baked into OSI's design
>> of this process.  Specifically, (AFAICT from
>> <https://opensource.org/approval>) there is *still* no way to appeal
>> decisions of license approval once OSI makes them.  IOW, there is no
>> appeals or supreme court of OSI license approval (despite many
>> suggestions, including from past OSI Directors, over the years that one
>> be created).  There is *just* this process, on [license-review] mailing
>> list, that happens *only* when a license is submitted for approval.
>> After a license is approved, it's approved forever, and then it can be
>> used as precedent forever without any opportunity for reconsideration
>> [0].  OSI Directors and leadership leave, the reasoning that a given
>> license was acceptable isn't published, and various terms get
>> grandfathered in without any justification or treatise published.  The
>> next submitter comes along and says: “I should get this clause
>> OSI-approved because this other one is”.

Fontana replied:
>>>> These are good criticisms, but just want to note that Pam has done a
>>>> good job of trying to articulate rationale for approval decisions over
>>>> the past couple of years.

I agree, you snipped the bit in your quoting where I'd already said:
>> I …  feel that Pam has done an excellent job making this process more
>> rigorous.  I frankly rarely bothered to participate in license-review
>> before her tenure because the past processes lacked the kind of rigor
>> that OSI ought to have had from the beginning in license review …  Pam's
>> process here is *definitely* interested in that kind of rigor.

But, we (Fontana and I) are agreed there are problems …
>> Admittedly, the license steward can submit to “delist” their own
>> license(s), but the license steward is obviously a biased party.  I also
>> note the process as a whole is somewhat biased in another direction:
>> toward licenses that have a traditional, single-organizational license
>> steward.

>>>> I've been suggesting that the OSI should have a dis-approval or
>>>> delisting process, capable of being initiated by someone other than the
>>>> license steward, for a long time, but the OSI has been pretty resistant
>>>> to this idea.

Was this put to an actual OSI Board vote when you were on the Board?  If so,
how must “resistance” was there?

Fontana, specifically, ISTR you were on the board when the process described
at <https://opensource.org/approval> was instituted; I'm curious to know
what other variants of that process (such as the ones we're discussing
above) were considered and rejected at that time, and which OSI Board
members were instrumental in rejecting them.  Voting records like this of
Board members about OSI's core activity would be important things to know
for those who have bought voting rights for OSI's Board elections.

  -- bkuhn