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

[Richard Fontana]

 On Tue, Dec 13, 2022 at 1:51 PM Bradley M. Kuhn <bkuhn at ebb.org> wrote:

> 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?  [. . .]
> 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?

I didn't follow the MPL redrafting too closely. I seem to remember
there being a light-traffic mailing list but couldn't find any
information about that or other possible historical materials on the
Mozilla.org site.

> 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 don't specifically remember anyone proposing inclusion of a choice
of law clause in GPLv3 but it wouldn't surprise me to learn or be
reminded that some lawyers involved in the process would have
suggested this. As you know, the FSF had already developed a pretty
negative view of choice of law clauses (at least those that are
typical in commercial agreements)
years earlier. The FSF presumably did not see the presence of a choice
of law clause as raising an inherent free software problem (as they
recognized licenses like MPL 1.1, EPL 1.0, and the QPL as free
software licenses) but I think they were pretty consistent in holding
that choice of law clauses were inherently GPL-incompatible.
Publicly-released draft 2 of GPLv3 had this sentence in what became
present-day section 7:

"All other additional requirements, including attorney’s fees
provisions, choice of law, forum, and venue clauses, arbitration
clauses, mandatory contractual acceptance clauses, requirements
regarding changes to the name of the work, and terms that re-
quire that conveyed copies be governed by a license other than this
License, are prohibited."

This was ultimately removed but it shows how the FSF at least viewed
such things at the time.

> 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 haven't paid too much attention to it, to be honest.

> >>>> 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?

No board vote, but it's been informally discussed (probably mainly on
this list) several times in the past. Actually I believe the OSI today
may be more receptive to the idea.

> 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.

I don't remember too much about variants of the process. Two things I
remember feeling were significant improvements were (1) the
establishment of timing expectations for decisions, and (2) the
indication that approval was based not merely on satisfying the letter
of the OSD but also on establishing that the proposed license would
provide software freedom -- the latter has been severely criticized by
some people though.

Richard