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

[Pamela Chestek]

On 12/12/2022 8:34 AM, Bradley M. Kuhn wrote:
>>> Pamela Chestek wrote:
>>>> Someone recently persuaded me that a choice of law provision is beneficial
>>>> to the extent it provides certainty. Without it, you have no idea what law
>>>> might apply and therefore no way to evaluate the risk.
> I replied:
>>> Choice of law clauses have always tempted FOSS license drafters.  Good
>>> FOSS license drafters resist the temptation — knowing that it'll cause
>>> more trouble than help.
> Pam asked:
>> How?
> IMO, it's pretty obvious.  If I want to enforce a license with a choice of
> law clause, *either* I end up asking a court in one jurisdiction to
> understand the laws of a foreign jurisdiction (i.e., a USA Court trying to
> interpret the laws of Germany, in the case of the so-called “Open Logistics
> License”), or I have to take action in that jurisdiction, not my own.
You're confusing two things, choice of law and venue/jurisdiction. I am 
only speaking of the former. As to the former, it is not infrequent that 
US courts decide matters under foreign law, and very common in a similar 
situation, decided a case under a different state's laws. For foreign 
law, typically the parties provide dueling experts on what the foreign 
law is. I understand that the same happens in other countries. It's not 
that hard.
>
> This kind of cross jurisdictional mess may be just “another day at the
> office” for lawyers, but for individuals who aren't lawyers, this is a
> daunting and confusing proposition.  FOSS licenses are for the people,
> not for the lawyers.
Somehow it's better to not have a clue what law would be applied than to 
have something you could go look up? Or are you saying that we should 
avoid covering important topics in licenses because non-lawyers might 
not care about it or they're not bright enough to understand? It is 
indeed another day at the office for lawyers, we take care of the 
details that our non-lawyer clients may not be aware of or think about 
but that are important.
> Also, if the laws (or precedents) of that jurisdiction change in a way that
> is not friendly to FOSS, it locks all FOSS under that license into a bad
> legal regime.  This reason was one of the many reasons why copyleft license
> drafters have historically rejected choice of law.  Copyleft never wants all
> its eggs in a single jurisdictional basket.
Or, you could have locked into a jurisdiction because of its 
Constitutionally based protections, like the First Amendment. You also 
seem to assume that one can shop around for a favorable jurisdiction, 
but it's not that easy. You have to have jurisdiction over the person, 
which will limit your choices. And you therefore may be limited to 
jurisdictions that have less favorable laws.

What might happen under an unstated choice of law is a spin of the 
roulette wheel. You seem to prefer uncertainty to certainty but others 
may prefer certainty.
>
>   * * *
>
> CDDL, of course, had a choice of law (in part) to force it to be
> incompatible with all FOSS licenses that didn't have them.  Certain
> incompatibility with the GPL is now known to have been a planned design
> goal of the CDDL.  Is that also a design goal of the Open Logistics
> License, one wonders?
It's quite a surprise to me that the CDDL is incompatible with all FOSS 
licenses that don't have a choice of law provision. You can't blend CDDL 
and MIT? Or do you mean just the GPL licenses? If one wants to create an 
incompatibility with the GPL licenses you're limited only by creativity. 
You're blaming the tool, which might be a good tool when used for its 
intended purposes.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
(919) 800-8033
www.chesteklegal.com