jurisdiction and venue

[Ned Lilly-2]

Apologies if this is an FAQ, but I wasn't able to find it...

Are you permitted to change the jurisdiction and/or venue in an OSI-approved license?  For example, if I wanted to use the new CPAL, I see that it is governed by California law, and the venue for any litigation would be Santa Clara County.

Is it still considered the same license if the licensor changes the locations for jurisdiction and venue to one that is more convenient/appropriate to its own company?

Thanks,
Ned Lilly

[Russ Nelson]

Ned Lilly writes:
 > Are you permitted to change the jurisdiction and/or venue in an
 > OSI-approved license?  For example, if I wanted to use the new
 > CPAL, I see that it is governed by California law, and the venue
 > for any litigation would be Santa Clara County.

No, you can't change it.  The license author expects their language to
be construed according to California law and the District Court that
Santa Clara lies in.

I would note that the Microsoft licenses specify neither jurisdiction
nor venue.  Possible that they don't care where they get sued because
they're everywhere.  On the other hand, you could get sued somewhere
where copyright violations are punishable by death.

NO obvious solution lying around.

Or, rather, all the obvious solutions create worse problems.

--
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Crynwr sells support for free software  | PGPok | about economics even though
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[Matthew Garrett]

On Mon, Jul 30, 2007 at 10:38:48PM -0400, Russ Nelson wrote:
> Ned Lilly writes:
>  > Are you permitted to change the jurisdiction and/or venue in an
>  > OSI-approved license?  For example, if I wanted to use the new
>  > CPAL, I see that it is governed by California law, and the venue
>  > for any litigation would be Santa Clara County.
>
> No, you can't change it.  The license author expects their language to
> be construed according to California law and the District Court that
> Santa Clara lies in.

If the license is itself under a free license, I don't see why altering
the choice of jurisdiction/venue would be a problem. Of course, changes
in legal interpretation might render the license unworkable or impose
restrictions that would make it impossible to comply with the OSD. But
that's hardly a given.

--
Matthew Garrett | mjg59@...

[Ned Lilly-2]

Matthew Garrett wrote:

> On Mon, Jul 30, 2007 at 10:38:48PM -0400, Russ Nelson wrote:
>> Ned Lilly writes:
>>  > Are you permitted to change the jurisdiction and/or venue in an
>>  > OSI-approved license?  For example, if I wanted to use the new
>>  > CPAL, I see that it is governed by California law, and the venue
>>  > for any litigation would be Santa Clara County.
>>
>> No, you can't change it.  The license author expects their language to
>> be construed according to California law and the District Court that
>> Santa Clara lies in.
>
> If the license is itself under a free license, I don't see why altering
> the choice of jurisdiction/venue would be a problem. Of course, changes
> in legal interpretation might render the license unworkable or impose
> restrictions that would make it impossible to comply with the OSD. But
> that's hardly a given.

That would be my instinct as well, Matthew, but I appreciate Russ' response.

If that's the official position of OSI, I fear it's the kind of thing
that can lead to license proliferation, and lack of adoption of
OSI-certified licenses.

Why can't the licenses just have jurisdiction and venue as a fill-in,
like some other items you see in Exhibits and such?  I can see the
perils of being silent on the question, but I would think that it's not
unreasonable for a company based in New York, say, to want to choose New
York law and courts.

Having said that, it's important to us to use an OSI-certified license,
so we'll roll with it.  But if this is the kind of thing that's of
interest to anyone else, I'd welcome the chance to talk about it, and
perhaps revisit the question in future revisions...

Thanks,
Ned

[Brendan Scott]

Russ Nelson wrote:

> Ned Lilly writes:
>  > Are you permitted to change the jurisdiction and/or venue in an
>  > OSI-approved license?  For example, if I wanted to use the new
>  > CPAL, I see that it is governed by California law, and the venue
>  > for any litigation would be Santa Clara County.
>
> No, you can't change it.  The license author expects their language to
> be construed according to California law and the District Court that
> Santa Clara lies in.
>
> I would note that the Microsoft licenses specify neither jurisdiction
> nor venue.  Possible that they don't care where they get sued because
> they're everywhere.  On the other hand, you could get sued somewhere
> where copyright violations are punishable by death.
>
> NO obvious solution lying around.
>
> Or, rather, all the obvious solutions create worse problems.

Jurisdiction clauses for licences are clearly problematic.  It will not always be clear what it means to apply the law of jurisdiction X where the text itself is wholly a statement of an exception to prohibitions in the law of jurisdiction Y (at least to the extent it relates to activities in jurisdiction Y).  

That said, I can't see why, if the copyright holder of an independent program used the licence text and:
(a) changed the jurisdiction;
(b) deleted of the jurisdiction specific elements; or
(c) added a rider nullifying the jurisdiction specific requirements

(if that's the whole of the changes) that would cause an otherwise OSI-compliant licence text to become OSI-non-compliant.  Technically it's a new licence and therefore would no longer be OSI approved.  

There is an additional question of whether such a change would be an infringement of copyright in the licence text.


Brendan

[Lawrence Rosen]

Ned Lilly asked:
> Why can't the licenses just have jurisdiction and venue as a fill-in,
> like some other items you see in Exhibits and such?  I can see the
> perils of being silent on the question, but I would think that it's not
> unreasonable for a company based in New York, say, to want to choose New
> York law and courts.

Several OSI-approved licenses already have general-purpose jurisdiction and
venue provisions. See, e.g., Open Software License (OSL 3.0) section 11, at
http://opensource.org/licenses/osl-3.0.php.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: [phone]
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: Ned Lilly [mailto:ned@...]
> Sent: Monday, July 30, 2007 7:53 PM
> To: Matthew Garrett
> Cc: license-discuss@...
> Subject: Re: jurisdiction and venue
>
> Matthew Garrett wrote:
> > On Mon, Jul 30, 2007 at 10:38:48PM -0400, Russ Nelson wrote:
> >> Ned Lilly writes:
> >>  > Are you permitted to change the jurisdiction and/or venue in an
> >>  > OSI-approved license?  For example, if I wanted to use the new
> >>  > CPAL, I see that it is governed by California law, and the venue
> >>  > for any litigation would be Santa Clara County.
> >>
> >> No, you can't change it.  The license author expects their language to
> >> be construed according to California law and the District Court that
> >> Santa Clara lies in.
> >
> > If the license is itself under a free license, I don't see why altering
> > the choice of jurisdiction/venue would be a problem. Of course, changes
> > in legal interpretation might render the license unworkable or impose
> > restrictions that would make it impossible to comply with the OSD. But
> > that's hardly a given.
>
> That would be my instinct as well, Matthew, but I appreciate Russ'
> response.
>
> If that's the official position of OSI, I fear it's the kind of thing
> that can lead to license proliferation, and lack of adoption of
> OSI-certified licenses.
>
> Why can't the licenses just have jurisdiction and venue as a fill-in,
> like some other items you see in Exhibits and such?  I can see the
> perils of being silent on the question, but I would think that it's not
> unreasonable for a company based in New York, say, to want to choose New
> York law and courts.
>
> Having said that, it's important to us to use an OSI-certified license,
> so we'll roll with it.  But if this is the kind of thing that's of
> interest to anyone else, I'd welcome the chance to talk about it, and
> perhaps revisit the question in future revisions...
>
> Thanks,
> Ned

[John Cowan]

Russ Nelson scripsit:
> Ned Lilly writes:
>  > Are you permitted to change the jurisdiction and/or venue in an
>  > OSI-approved license?  For example, if I wanted to use the new
>  > CPAL, I see that it is governed by California law, and the venue
>  > for any litigation would be Santa Clara County.
>
> No, you can't change it.  The license author expects their language to
> be construed according to California law and the District Court that
> Santa Clara lies in.

That blurs the distinction between choice of law and jurisdiction/venue.
It's reasonable to say that if a license requires that it be interpreted
by California law, mutating it to apply New Jersey law instead produces a
fundamentally different license.  But merely saying that the jurisdiction
lies with the courts of New Jersey (which will apply California law when
interpreting the license), or that the case will be tried in New Jersey,
is not a change of the same type.

--
But that, he realized, was a foolish            John Cowan
thought; as no one knew better than he          cowan@...
that the Wall had no other side.                http://www.ccil.org/~cowan
        --Arthur C. Clarke, "The Wall of Darkness"