[License-discuss] [License-review] in opposition of 'choice of law' provisions in FOSS licenses (was: For Approval: Open Logistics License v1.2)

[Lawrence Rosen]

Mike Milinkovich wrote:

In my view, the purely pragmatic answers to "why are choice of law provisions in open source licenses disfavored" are:

1.      Many lawyers don't like them. In my experience there were lots of lawyers who found the EPL-1.0 USA-centric because of its choice of law provision and avoided it as a result. E.g. why would a German automaker want to contribute code under a license that stipulates US law when they go to great lengths to shield their company from US law? Telling them that the lawsuit could still proceed in a German court did not give them much comfort. 

Mike, I worked for several years at and for Siemens, a German company, and I understood completely why they didn’t want to acquire software from (e.g) a US company that might subject them to US jurisdictions – in particular the discovery rules of US businesses in (e.g.) North Carolina or Texas. That is a completely valid concern. That is why I drafted the OSL/AFL 3.0 jurisdictional provision as I did. All sophisticated German automakers will acquire important software from US companies that conduct their primary businesses in (e.g.) Germany. They will not sign contracts directly with engineers who work exclusively in their (e.g.) North Carolina or Texas garages. They are not stupid software users!

 

I wish that you had consulted attorneys who paid more attention to legal provisions in US-drafted software licenses that DON’T STIPULATE US LAW! You wasted your money paying them for legal advice. And by now relying on software licenses that omit a choice of jurisdiction provision entirely as if that would resolve their issue. Their advice was incompetent.

 

11) Jurisdiction, Venue and Governing Law. Any action or suit relating to this License may be brought only in the courts of a jurisdiction wherein the Licensor resides or in which Licensor conducts its primary business, and under the laws of that jurisdiction excluding its conflict-of-law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any use of the Original Work outside the scope of this License or after its termination shall be subject to the requirements and penalties of copyright or patent law in the appropriate jurisdiction. This section shall survive the termination of this License. [OSL/AFL section 11.]

 

/Larry

 

Lawrence Rosen

707-478-8932

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