[License-review] For Approval: Open Logistics License v1.2

[Carlo Piana]

All, some random comments here, from the perspective of an Italian lawyer as well.

----- Messaggio originale -----
> Da: "Andreas Nettsträter" <andreas.nettstraeter at openlogisticsfoundation.org>
> A: "license-review at lists.opensource.org" <license-review at lists.opensource.org>
> Inviato: Lunedì, 5 dicembre 2022 14:58:44
> Oggetto: [License-review] For Approval: Open Logistics License v1.2

> Dear License Review Team,
> 
> I would like to propose the Open Logistics License v1.2 for approval. This is a
> resubmission after a major revision of the Open Logistics License v1.0. We
> included most of the input we received from the first round of approval but
> also some comments from the license discussion list.
> 
> You can find the plain text copy of the license in the attachment and the
> requested additional information in the following.
> 
> Rationale:
> This new license is intended to represent the rights and obligations of an
> established license, such as Apache v2, while respecting the differences
> between US and German law. The changes were mainly done in the paragraphs
> regarding warranty (limitation of the warranty to comply with legal
> requirements) and liability (intent cannot be excluded under German law).

Indeed this is true also under Italian Law and to my understanding a few other laws.

> 
> Distinguish:
> The Open Logistics License is based on Apache v2 but has been modified to comply
> with German law (as a representative for "European" law).
> 

I take exception. There are at least 27 legal systems in play in Europe. It is true however that similar constraint exist also in my home jurisdiction.

> Legal review:
> The entire process of discussing and drafting the license was accompanied by a
> German law firm specialized in IT law and reviewed and approved by several
> in-house lawyers of larger European companies. The language and grammar were
> checked by native speakers with a background in law.

It is noticeable. I have a few doubts as to some bits though. For instance, the license says "This License is granted free of charge and thus constitutes a gift. Accordingly,
any warranty is excluded."

Here we are on slippery ground. What you provide here is an (unilateral) characterization of what the relationship between two parties is, which is often something taken into consideration for interpretation of the common will of the parties and therefore qualification. However, since you here enter the realm of contractual law, it it not necessarily conveying the intended consequences.

As a general proposition, I belong to the school according to which an open source license should never rely on contract law (or on a specific law for that matter).

Also -- and I wonder how this went unnoticed before, Section 4 last alinea: 

> You must ensure that the recipients of the Subject Matter of the License or
  Derivative Works are obligated to incorporate the provisions of this Section 4
  into any license under which they distribute the Subject Matter of the License
  or Derivative Works to any other recipients.

This provision requires the "You" to a legal effect. As a general remark, this is an open ended obligation and IMVHO a bad design decision, since the legal effect depends on many different circumstances outside the control of the "You", including intent, capacity, errors, lack of proper form etc. You can surely include perform an obligation as a condition of the grant, but including a legal effect is to me really really seeking for trouble.


> 
> Proliferation category:
> Our proposal would be: Special purpose license.
> 
> I'm happy to deliver more information and look forward to your comments.


My general impression is that the license has no major shortcomings WRT compliance with OSD. It has a rationale which I sort of sympathize with, but has some issues that makes me very perplexed.

The choice to include a choice-of-law provision is really a no-go for me personally. What if someone would change it from Germany to France? And someone else to Japan? What would the applicable law be? Would it be possible or impossible? In case it was impossible, you will have unnecessary friction (and quasi-copyleft), in case it was possible, you will not be better off than without a choice-of-law

This is a general remark, the same I had for long time with Creative Commons -- and now it's gone, EUPL and many others, alas.

Cheers

Carlo



> 
> Regards from Germany
> Andreas
> 
> --
> Andreas Nettsträter
> 
> Open Logistics Foundation
> Emil-Figge-Straße 80, 44227 Dortmund, Germany
> 
> mailto: andreas.nettstraeter at openlogisticsfoundation.org
> https://www.openlogisticsfoundation.org/
> 
> 
> 
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