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

[Mike Milinkovich]

Pam,

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.

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.

On 2022-12-12 2:35 p.m., Pamela Chestek wrote:
> 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
>
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