Question regarding a new local license approach

[Alex Bligh]

--On 11 March 2005 17:30 +0100 Walter van Holst 
<walter.van.holst at gmail.com> wrote:

> Not to rain on your parade, but provisions regarding applicable law
> and venue are not under all circumstances enforcable in all
> jurisdictions. In many EU-jurisdictions you cannot have a provision on
> those subjects in agreements with consumers.

I am aware of this. In fact (AIUI) it is not that you cannot have such a
provision in your agreements, but that (under certain circumstances, which
IIRC are limited, inter alia, to the end-user being a consumer) the
end-user has the choice of using the jurisdiction specified in the contract
(here the licensor's) and his own jurisdiction. I can't remember how
it affects governing law but (for the sake of argument) let's assume
it's similar.

The reason why I was saying I did not consider the clause the sort
of "jurisdiction specific" clause I was moaning about, is because:
a) It did not specify a particular jurisdiction, which I would suggest
   is nearly always suboptimal when both licensee and licensor are
   not from that jurisdiction.
b) At least it shows they have given some thought to having the license
   interpreted in more than one jurisdiction, and under more than one
   governing law.
c) It seems the "best sort of a solution" to the problem without having
   multiple licenses. I am not saying Larry Rosen necessarily did the
   world's finest job crafting a license that does the best job possible
   in all jurisdiction, but at least he's thought about it. If I was
   to tentatively suggest one criticism, it might be that currently it
   provides:
	Some jurisdictions do not allow the exclusion or limitation of
	incidental or consequential damages, so this exclusion and
	limitation may not apply to You.
   and it might have merely provided that the limitation should be
   effective to the fullest extent permitted by law (if any). On the
   other hand, I don't have Larry's experiences writing licenses, so
   he may well have done this for a reason.

Sure, there may be jurisdictions that certain licenses never work in. Heh,
perhaps there are places where certain terms need to be notarized, or at
least set out in writing. Well, in that case Martin Fink, and his
international compatriots, are just going to have to do a bit more work in
these jurisdictions, and they can set about lobbying their governments to
make their legal system a bit simpler for them. I'm not saying the OSI
should not approve licenses which have jurisdiction specific fixes,
I am just saying if it is going to get into the business of recommending
licenses, it shouldn't recommend ones with jurisdiction specific contents,
as they are less likely to have general application outside that
jurisdiction.

Alex