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Re: choice of law clauses and GPL


From: Alan Mackenzie
Subject: Re: choice of law clauses and GPL
Date: Wed, 19 Aug 2009 22:28:01 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

Tim Smith <address@hidden> wrote:
> In article <address@hidden>,
> "Alfred M. Szmidt" <address@hidden> wrote:

>>    On the licenses list at fsf.org, there are several licenses in the
>>    "free but not GPL compatible" list that appear to be incompatible
>>    because they contain a choice of law clause.

>>    Why would a choice of law clause make a license incompatible with
>>    GPL?

>> Because they add additional terms that are not in the GNU GPL.

> It's additional restrictions that make a license incompatible, not 
> merely additional terms. If the additional terms weren't restrictions,
> they would be OK.

> I don't see why choice of law clauses would necessarily be additional 
> restrictions. To me, it seems they are more like definitions. They are 
> telling you that the meaning of the license is interpreted under a 
> particular established law. If the license, when interpreted under that 
> law, does not impose any additional restrictions, why couldn't it be GPL 
> compatible?

It reduces the freedom of people in other jurisdictions.  These people,
theoretically, could become subject to an alien legal system over which
they have no control, no knowledge, and no access to lawyers versed in
it.  This is a disincentive to use software restricted in this fashion.

> Note that a choice of law clause doesn't mean that any disputes must
> be litigated in the courts of the jurisdiction whose law is specified.

Doesn't it?  I think you're wrong here.  How can a Saudi Arabian court
adjudicate a case under Canadian law, for example?  Who's going to be
the judge?  Who's going to be qualified to act as an advocate?  Closer
to home, Scottish courts don't adjudicate English law, and this places
consumers living in Scotland at a massive disadvantage, since any legal
action against large companies which typically mandate English law (e.g.
rogue telecoms companies like Deutsche Telekom UK) must be litigated
abroad.

> The courts of one state or country are willing and able to apply the
> law of another state and country when handling a contract or license
> case.

You seem to be saying that this is a general, customary thing, applicable
to just about any pair of countries and their legal systems.

I believe you're wrong here, too.  It just sounds absurd.  Judges and
lawyers are only trained to operate under their own respective legal
systems.  Please back up your assertion with something solid, say
examples.

-- 
Alan Mackenzie (Nuremberg, Germany).



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