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<div class="moz-cite-prefix">On 2022-12-12 5:40 p.m., Pamela Chestek
wrote:<br>
</div>
<blockquote type="cite"
cite="mid:68a2c3b9-9ce4-40d6-e91e-4f5688328261@chesteklegal.com">On
12/12/2022 2:01 PM, Mike Milinkovich wrote:
<br>
<blockquote type="cite" style="color: #007cff;">Pam,
<br>
<br>
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.
<br>
<br>
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.
<br>
<br>
</blockquote>
I don't disagree that it seems disfavored, but I was curious why,
especially after someone challenged me and I didn't have a good
answer. And the reason seems to still be ... just because?
</blockquote>
<p>Pam,</p>
<p>I am coming at the question purely as a guy who for many years
was essentially the steward of a license that had a choice of law
provision and found it an unpleasant experience. <br>
</p>
<p>In my view, the purely pragmatic answers to "why are choice of
law provisions in open source licenses disfavored" are:</p>
<ol>
<li>Many lawyers don't like them. In my experience there were lots
of lawyers who found the EPL-1.0 USA-centric because of its
choice of law provision and avoided it as a result. E.g. why
would a German automaker want to contribute code under a license
that stipulates US law when they go to great lengths to shield
their company from US law? Telling them that the lawsuit could
still proceed in a German court did not give them much comfort.
<br>
<br>
</li>
<li>Many lawyers don't pay attention to them. For example, I can
think of multiple instances where lawyers insisted that the
EPL-1.0 was a strong copyleft license because it relied upon the
US Copyright Act's definition of derivative work (as indicated
by the choice of law provision) rather than defining the term in
the license. So instead they read the EPL-1.0 using the FSF's
interpretation of derivative-work-includes-linking. Suffice it
to say we vigorously disagreed with their interpretation, but we
were never able to change their minds, even after pointing them
directly at the US law. So for EPL-2.0 we cut-and-paste the
definition of derivative work from the US law into the license
to fix that. Go figure. <br>
</li>
</ol>
<p>To summarize: as a practitioner, I found the EPL-1.0 choice of
law provision to be a barrier to both contribution and adoption.
Because of that direct personal experience, I believe such
provisions are a bad idea. <br>
</p>
And at the risk of belaboring the point, I do think that think the
fact that 95%++ of all FLOSS code is published using licenses
without a choice of law provision is a valid point and should not be
dismissed as a "...just because". Further, I agree with Bradley on
his point that if someone thinks that there are issues with the
existing major licenses under German law we should be fixing <i>that
</i>problem. I think approving a new license in 2023 that includes a
choice of law provision is ... quaint. IMHO, it is an anachronism.
Probably not a fatal flaw for approval because the OSI and/or this
list has never come out firmly against such clauses. But I am sure
that the Open Logistics Foundation relies upon large heaps of
software using licenses which do not specify German law. Relying on
that software while believing there is a fundamental flaw in their
licenses seems like a contradiction, no? <br>
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