[License-review] In opposition of 'choice of law' provisions in FOSS licenses (was: For Approval: Open Logistics License v1.2)

[Carlo Piana]

----- Messaggio originale -----
> Da: "Mike Milinkovich" <mike.milinkovich at opensource.org>
> A: "license-review at lists.opensource.org" <license-review at lists.opensource.org>
> Inviato: Lunedì, 12 dicembre 2022 23:01:10
> Oggetto: Re: [License-review] For Approval: Open Logistics License v1.2

> 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.

Mike, thank you, that matches the same experience of mine. 

Another notable license dropping it for good is Creative Commons (v3 -> v4)


> 
> 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.
> 

The "everybody does it" argument does not look appealing. But that plus a strong rationale, seem to work in the same direction. 

Also,  I am sympathetic to the argument raised by Bradley and which we discussed for other licenses not to create an asymmetry by preferring the local laws of one developer or to give privileged positions to the "initial contributor" whatever that means. 

I strongly invite drafters NOT to include choice-of-law provisions in their licenses. 

All the best

Carlo