[License-review] Governing law [WAS For Approval: Open Logistics License v1.3 (was v1.2)]

[Carlo Piana]

> Da: "McCoy Smith" <mccoy at lexpan.law>
> A: "License submissions for OSI review" <license-review at lists.opensource.org>
> Inviato: Martedì, 17 gennaio 2023 23:49:07
> Oggetto: Re: [License-review] For Approval: Open Logistics License v1.3 (was
> v1.2)

> One thing I find curious about this license:
> It is designed to be interpreted under German law, but at least in its
> intellectual property grants, it is written as if it were to be interpreted
> under USA law.

> So the copyright grants are the following:
> reproduce, prepare Derivative Works of, publicly display, publicly perform, and
> distribute.

> Those are the rights granted under US law, 17 USC 106. The German Copyright Act
> Sec. 15 et seq. expresses the rights differently.

> The patent grants are the following:
> produce, have produced, use, offer for sale, sell, import and otherwise
> transfer.

> This looks more like the grants in German Patent Act Sec. 9, although it’s more
> a hybrid of 35 US 271(a) & German Patent Act Sec 9.

> Shouldn’t you be using the rights granted under the German Copyright and Patent
> Acts instead if you want this to be a Germany specific license?

McCoy, 

You are making a good point. Note I am digressing here, hence the change of subject. 

When discussing the law of the license, we are conflating two different subjects, methinks. 

a) the copyright law under which the rights are born with and/or assigned to the holder (that is dictated by the Berne Convention, roughly) 
b) the law governing the deed by which the holder licenses or transfers them, which tentatively can be elected by the acting entity(ies). 

I see no particular reasons why the two must coincide, apart from convenience. 

Mind that any such attempt would be in part moot, since you might end up discussing the license/assignment in situations where you also have to argue according to the law of the place(s) where a supposed infringement has occurred -- which also comes into play. 

Also, since the Berne Convention (Article 5) uses the place of origin, meaning of first publication, what about software made of subsequent aggregations and additions? Depending on many circumstances, different laws would apply. 

This single too sparingly discussed matter IMHO clarifies why de plano applying copyright to software, as if software was just another copyrightable item with just a few quirks, is always an ill advised choice. 

Best, 

Carlo 
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