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<p>Re-posting to License discuss<br>
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<div class="moz-cite-prefix">On 2022-12-13 2:26 p.m., Mike
Milinkovich wrote:<br>
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<blockquote type="cite"
cite="mid:7700f56a-0348-776a-aad9-a06a8dddadf5@opensource.org">
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<div class="moz-cite-prefix">On 2022-12-12 5:40 p.m., Pamela
Chestek wrote:<br>
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<blockquote type="cite"
cite="mid:68a2c3b9-9ce4-40d6-e91e-4f5688328261@chesteklegal.com">On
12/12/2022 2:01 PM, Mike Milinkovich wrote: <br>
<blockquote type="cite" style="color: #007cff;">Pam, <br>
<br>
Just to pipe in as a practitioner, not a lawyer. One of the
major differences between EPL-1.0 and EPL-2.0 was the removal
of the license's choice of law provision. We spent something
like 15 years arguing that the certainty provided by the
choice of law provision was valuable. I don't remember winning
that argument once in all that time. In my experience, both
adopters and contributors viewed the choice of law as a
negative. <br>
<br>
I would also add that if you sort open source licenses by
usage you will find that something like 95%++ of all free and
open source software is currently made available under
licenses which do not have a choice of law provision. So as a
purely practical matter I consider this debate settled in
favor of do not have a choice of law provision. <br>
<br>
</blockquote>
I don't disagree that it seems disfavored, but I was curious
why, especially after someone challenged me and I didn't have a
good answer. And the reason seems to still be ... just because?
</blockquote>
<p>Pam,</p>
<p>I am coming at the question purely as a guy who for many years
was essentially the steward of a license that had a choice of
law provision and found it an unpleasant experience. <br>
</p>
<p>In my view, the purely pragmatic answers to "why are choice of
law provisions in open source licenses disfavored" are:</p>
<ol>
<li>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. <br>
<br>
</li>
<li>Many lawyers don't pay attention to them. For example, I can
think of multiple instances where lawyers insisted that the
EPL-1.0 was a strong copyleft license because it relied upon
the US Copyright Act's definition of derivative work (as
indicated by the choice of law provision) rather than defining
the term in the license. So instead they read the EPL-1.0
using the FSF's interpretation of
derivative-work-includes-linking. Suffice it to say we
vigorously disagreed with their interpretation, but we were
never able to change their minds, even after pointing them
directly at the US law. So for EPL-2.0 we cut-and-paste the
definition of derivative work from the US law into the license
to fix that. Go figure. <br>
</li>
</ol>
<p>To summarize: as a practitioner, I found the EPL-1.0 choice of
law provision to be a barrier to both contribution and adoption.
Because of that direct personal experience, I believe such
provisions are a bad idea. <br>
</p>
And at the risk of belaboring the point, I do think that think the
fact that 95%++ of all FLOSS code is published using licenses
without a choice of law provision is a valid point and should not
be dismissed as a "...just because". Further, I agree with Bradley
on his point that if someone thinks that there are issues with the
existing major licenses under German law we should be fixing <i>that
</i>problem. I think approving a new license in 2023 that includes
a choice of law provision is ... quaint. IMHO, it is an
anachronism. Probably not a fatal flaw for approval because the
OSI and/or this list has never come out firmly against such
clauses. But I am sure that the Open Logistics Foundation relies
upon large heaps of software using licenses which do not specify
German law. Relying on that software while believing there is a
fundamental flaw in their licenses seems like a contradiction, no?
<br>
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