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

[Pamela Chestek]

On 12/11/2022 6:46 PM, Thorsten Glaser wrote:
> Pamela Chestek dixit:
>
>> On 12/5/2022 2:45 PM, Carlo Piana wrote:
>>> The choice to include a choice-of-law provision is really a no-go for me
> […]
>> 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.
> This is something that will appeal to companies. However, in
> general business with end users, consumer protection normally
> says that the law to be used is that of the end user, if it’s
> not B2B anyway. Isn’t this kinda the same with the licences?
That's not true in the US. As a general rule we don't distinguish 
consumer contracts from business-to-business contracts except in special 
cases, e.g., lending, insurance, product warranty. Particularly when it 
comes to contracts associated with internet transactions (terms of use, 
for example) we treat end users really awfully with very little 
protection. The choice of law provisions in those are enforceable. But 
then it's not really that big a deal for most purposes.
> Whom does OSI wish to protect more, considering both sides may
> be either private individuals or big companies… (no weighing
> from my side, just providing food for thought).
I don't see a choice of law provision as biased in favor of either 
individuals or big companies. It's just takes one variable out of the 
very complicated equation. How would the existence of the provision (not 
the country chosen, but the mechanism itself) favor either type of 
licensor? Couldn't it empower the small individual by allowing them to 
make a choice in their own favor? Without it, doesn't the private 
individual licensor end up not knowing under what country's laws they 
might be sued?
>
> And isn’t the Berne Convention already making the country of
> the *recipient* of the licence the binding one anyway? AIUI,
> it states that a work from country A does receive the same
> protections in country B as a native B’s work enjoys. So, for
> licences (as opposed to business contracts), this probably is
> already specified?

The US would apply the law of the place where the infringement occurred. 
That could be where the recipient of the license is, but not 
necessarily. And on occasion, where the infringement occurred outside 
the US, a US court may decide the infringement cause of action applying 
the foreign country's laws.

Pam

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