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

[Patrice-Emmanuel Schmitz]

I must tell everyone having serious doubts about the utility of omitting
(or banning !!!) choice of law clauses.
Venue (the competent court) is something different and it could be anywhere
indeed, i.e. in the defendant country, but a clear reference to applicable
law looks important when the case requests some interpretation.
In particular, the European Union law (500 million inhabitants and main
contributor to Open Source) applies software copyright in a specific manner
concerning moral rights, information due to the public, liability,
interoperability (= copyright exception on interfaces, invalidating the FSF
opinion that "linking creates a derivative") and other points.
I believe that all licenses originated in the EU do have some choice of law
provision.

   - CeCILL-2.1 (one of the oldest) refers to French law
   - D-FSL-1.0 (Written by Axel Metzger and Till Jaeger from the Institute
   for Legal Questions on Free and Open Source Software - ifrOSS) refers to
   German law
   - EUPL-1.2 (currently the most used) refers to "the law of the European
   Union Member State where the Licensor has his seat, resides or has his
   registered office" (or Belgian law in other cases, knowing that all EU
   Member State laws are similar because resulting from the same EU directive).

So any idea of banning choice of law clauses will raise serious issues, at
least in the EU.
Best wishes,
Patrice-Emmanuel
legal expert - www.joinup.eu

Le sam. 17 déc. 2022 à 19:25, Lawrence Rosen <lrosen at rosenlaw.com> a écrit :

> Mike Milinkovich wrote: “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.”
>
>
>
> Pam and others,
>
> Does anyone on here believe that omitting a “choice of law” provision
> entirely from a software license will necessarily result in the license
> being sent to the licensee’s jurisdiction for court enforcement? How does
> that default work? Is it magic?
>
>
>
> /Larry
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-- 
Patrice-Emmanuel Schmitz
pe.schmitz at gmail.com
tel. + 32 478 50 40 65
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