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

[Bruce Perens]

I have seen a reasonably-well-funded United States company use QPL, when it
had no legal presence in Norway and no attorney admitted to Norway's
courts. This is another problem with choice of venue. The users don't
understand it (or just don't look that hard) and commit to something that
would actually be more expensive than normal for them to enforce.

Yes, it's really simple to you and me. Most folks just have no context for
it.

    Thanks

    Bruce

On Tue, Dec 13, 2022 at 10:10 AM Richard Fontana <rfontana at redhat.com>
wrote:

> (moving this reply to license-discuss)
>
> On Tue, Dec 13, 2022 at 11:41 AM Bradley M. Kuhn <bkuhn at ebb.org> wrote:
> >
> > Eric Schultz wrote:
> > > We already have a number of approved licenses with a choice of law
> clauses.
> >
> > 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.
>
> Aside from EPL 1.0 (and I assume its ancestors), probably the most
> significant one historically is MPL 1.1 and its ancestors (California)
> and, without checking, I'd assume most or all of its mostly forgotten
> OSI-approved vanity license derivatives. However, MPL 2.0 says "Any
> litigation relating to this License may be brought only in the courts
> of a jurisdiction where the defendant maintains its principal place of
> business and such litigation shall be governed by laws of that
> jurisdiction, without reference to its conflict-of-law provisions."
>
> There are probably also choice-of-law provisions naming specific
> jurisdictions in various less significant or otherwise more or less
> obsolete OSI-approved licenses. For example, the Q Public License has
> the following choice of law and venue clause: "This license is
> governed by the Laws of Norway. Disputes shall be settled by Oslo City
> Court." The variant of the QPL that was formerly used by OCaml (long
> after Qt stopped using the QPL), Fedora recently discovered, changes
> this to say "This license is governed by the Laws of France." (SPDX
> has an open issue to see whether this justifies the need for a new
> license identifier. While OCaml switched away from the QPL derivative
> several years ago, OCaml-QPL-licensed source code survives in other
> projects.)
>
> > Second, while you 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 this 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”.
>
> 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.
>
> > [0] 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.
>
> Richard
>
>
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-- 
Bruce Perens K6BP
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