Re: LAB Public License proposal
Le jeudi 18 Mars 2004 03:31, Rod Dixon, J.D., LL.M. a écrit : I do not see an OSD issue for here. Consequently, I recommend approval of the CUA Office Public License. This license does raise interesting questions about what appears to be a choice of law matter. I am not sure why French law is presenting the problem the poster says it does, but software distributed on the Internet seems capable of a simpler solution than drafting licenses in the manner proposed by the current draft of the CUA Office Public License. Sorry if my legal english is not very good. Questions about choice of a law matters, in many ways. Very important discussions raise here if France about the legality of most Free or Open Source licenses. Linux Magazine France, a French Linux monthly publication, raises some issues with Free and Open Source the licenses must cover to be valid. Internet distributed software raises another issue for those lawyers. French law is somewhat complex, as decisions come over decisions, and we have to comply with some judicial labyrinth whenever we have to write down some contractual documents. Licensing is one of the most complex of them. A confusing L.131-3 from French Intellectual Property act tells: transmission of author's rights is subornidated to the condition that each and every transmited right be distinctly mentioned in the session act and thet exploitation domain of each transmited right be delimited for its destination, place and duration. According to this text, GNU GPL is silent about this question. As a result a court can invalid this license and licensee will have on programs actions not legal in such a case. A court decision, while not dealing strictly with free or open source software, hits the real problem. A french court decided that a right transmission from an author to an editor was illegal and invalid because session duration was longer than the one imposed by law. The contract was nullified as author's will cannot overide law. The same could be applied if a French author, living in France, decided that applicable law would be Californian courts, which would be considered illegal by law. After acknowledging the intentions of the drafter of the CUA Office Public License, sections 4, 10, 11, and 12 seem oddly worded. For example, it is difficult to unravel the meaning of this phrase from section 12: This LICENSE shall be governed by French law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions Except when? CUA Office Public Licence and LAB Public License are equally oddly worded. For LAB license, French wording is even worse, as some lawyers only terms are to be introduced for the license be valid. conflict-of-law provisions is a very nasty judicial wording which Europe might face soon (mainly France, BTW) if EEC harmonization imposes changes in juridictions and texts. In such a case, objections shall be laid to EEC Central courts. At any rate, sections 4, 10, 11, and 12 should be reviewed to eliminate terms that do not meaningfully add to the drafter's intent. This license should be easier to read than it is now. Since I am not providing legal advice, I cannot be more specific. You would benefit from having your legal counsel review the terms of this license before finalizing the draft. Well, ease of reading is good, but lawyers do not think of such a user ease. They think in legal obligations and other odd matters, as they would have to support this in case of dispute. Trying to deal with contradictory laws is not an easy game and formalism is required by all courts. This introduces this level of complexity. We had to dig in most OSI approved licenses to find one which could be adapted. Most licenses come from USA entities, without this international legal intricacies. This is why we used CUA model as draft for our work. -- JCR aka DJ Anubis LAB Project Initiator coordinator -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: LAB Public License proposal
DJ Anubis said on Thu, Mar 18, 2004 at 08:58:30AM +0100,: French law is somewhat complex, as decisions come over decisions, and we have to comply with some judicial labyrinth whenever we have to write down some contractual documents. Licensing is one of the most complex of them. Hmm. Same situation pervails in the Common Law tradition too. You will be interested to know that in law school, we were taught that the Civil Law tradition (and France was almost always the example) does not rely much on what the Common law tradition calls `judicial precedent'; `precedent' is legalese for earlier decisions by the judiciary. A confusing L.131-3 from French Intellectual Property act tells: transmission of author's rights is subornidated to the condition that each and every transmited right be distinctly mentioned in the session act and thet exploitation domain of each transmited right be delimited for its destination, place and duration. Is this the official translation?? (Will the French ever have `official' translations of their laws?? *g*) Does this translate mean `granted rights have to be specifically enumerated; and the granted rights may be used only for the purpose, time and place for which the grant is made'?? If not, can you please explain the phrase `session act' and `delimited for its destination, place and duration'? According to this text, GNU GPL is silent about this question. As a result a court can invalid this license and licensee will have on programs actions not legal in such a case. Do the French have a doctrine of estoppel?? Is it possible for the French licensee to rely on the statements in the license as a promise made by the owner of copyright?? Or is that all promises relating to (a) enforcement of a right (b) permissions in a copyright work should invariably conform to the Intellectual Property Act you quoted above?? Licensee can rely on law of estoppel if the Copyright Law does not expressly exclude operation of estoppel. A court decision, while not dealing strictly with free or open source software, hits the real problem. A french court decided that I guess that this will still apply to F/L/OSS. The same could be applied if a French author, living in France, decided that applicable law would be Californian courts, which would be considered illegal by law. Will the whole contract / license be invalidated?? Or will the court just ignore only the provisions relating to choice of law?? Here (in India), choice of law provisions are read in a very restricted way. If the facts of the case do not, in any way confer jurisdiction on the courts at the place mentioned in the contract, the court will simply ignore those provisions relating to choice of law. OTOH, if courts at both place X and Y had jurisdiction, and parties decided that proceedings will be brought only at X, the courts will enforce that. Most licenses come from USA entities, without this international legal intricacies. This is why we used CUA model as draft for our work. Why do you need a choice of law clause in the first place?? (sorry if you have already answered this - I have not followed this thread t closely). -- +~+ Mahesh T. Pai, LL.M., 'NANDINI', S. R. M. Road, Ernakulam, Cochin-682018, Kerala, India. http://paivakil.port5.com +~+ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: LAB Public License proposal
DJ Anubis scripsit: No one is not supposed to be unaware of the law. Ignorance of the law excuses no man; not that all men know the law, but because it is an excuse every man will plead, and no man can tell how to refute him. --John Selden, 1584-1684 Nevertheless, this is not always strictly complied with. In criminal cases it holds up well enough, but when _Time_ magazine printed that a prominent Florida socialite had been divorced by her husband (where the fact was that she had divorced him), she sued for defamation. At the time, the only ground for divorce in Florida was adultery, and therefore _Time_ was per innuendo calling her an adulteress. The court rather sensibly held that _Time_ and its editors, both based in New York, neither knew nor had reason to know of this particular point of Florida law. Say a french author/vendor having his house/business in France must conform to french laws when granting/selling. Most jurisdictions surely apply the lex situs here. But when you are licensee, if the grantor is german, american, chinese, the grantor country law applies. With, or without, regard to the grantor's conflict of law rules? (I.e. accepting or rejecting the renvoi?) Most U.S. contracts attempt to contract out of the renvoi. -- John Cowan [EMAIL PROTECTED] www.ccil.org/~cowan www.reutershealth.com Micropayment advocates mistakenly believe that efficient allocation of resources is the purpose of markets. Efficiency is a byproduct of market systems, not their goal. The reasons markets work are not because users have embraced efficiency but because markets are the best place to allow users to maximize their preferences, and very often their preferences are not for conservation of cheap resources. --Clay Shirkey -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: LAB Public License proposal
I do not see an OSD issue for here. Consequently, I recommend approval of the CUA Office Public License. This license does raise interesting questions about what appears to be a choice of law matter. I am not sure why French law is presenting the problem the poster says it does, but software distributed on the Internet seems capable of a simpler solution than drafting licenses in the manner proposed by the current draft of the CUA Office Public License. After acknowledging the intentions of the drafter of the CUA Office Public License, sections 4, 10, 11, and 12 seem oddly worded. For example, it is difficult to unravel the meaning of this phrase from section 12: This LICENSE shall be governed by French law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions Except when? In addition, there are terms in this license that were borrowed from the previous license; some of these terms add a layer of confusion to the poster's license - - or, perhaps, the terms should be dropped from the original license as well. At any rate, sections 4, 10, 11, and 12 should be reviewed to eliminate terms that do not meaningfully add to the drafter's intent. This license should be easier to read than it is now. Since I am not providing legal advice, I cannot be more specific. You would benefit from having your legal counsel review the terms of this license before finalizing the draft. - Rod Rod Dixon Open Source Software Law Blog: http://opensource.cyberspaces.org Le lundi 15 Mars 2004 21:35, Rod Dixon, J.D., LL.M. a écrit : It might help if you highlighted the changes (using color text or bold facing). Is your explanation as to why you have declined to adopt the CUA Office Public License limited to the desire to comply with regulations in three jurisdictions? Would you be more specific? Rod A highlighted version is on line at http://www.lab-project.net/tests_priv/liclab-annotated.html for review. One of the reson we had to change some things from CUA Office Public License have to do with French laws imposing some legal mentions on all contractual papers or forms. We had to introduce a section for French Government End Users. In final, CUA Office Public License is great, only missing non USA specific legal information. This license only fills the gap. -- JCR aka DJ Anubis LAB Project Initiator coordinator -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: LAB Public License proposal
Le lundi 15 Mars 2004 21:35, Rod Dixon, J.D., LL.M. a écrit : It might help if you highlighted the changes (using color text or bold facing). Is your explanation as to why you have declined to adopt the CUA Office Public License limited to the desire to comply with regulations in three jurisdictions? Would you be more specific? Rod A highlighted version is on line at http://www.lab-project.net/tests_priv/liclab-annotated.html for review. One of the reson we had to change some things from CUA Office Public License have to do with French laws imposing some legal mentions on all contractual papers or forms. We had to introduce a section for French Government End Users. In final, CUA Office Public License is great, only missing non USA specific legal information. This license only fills the gap. -- JCR aka DJ Anubis LAB Project Initiator coordinator -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: LAB Public License proposal
Hi DJ, On Mar 16, 2004, at 10:26 AM, DJ Anubis wrote: Le lundi 15 Mars 2004 21:35, Rod Dixon, J.D., LL.M. a crit: It might help if you highlighted the changes (using color text or bold facing). Is your explanation as to why you have declined to adopt the CUA Office Public License limited to the desire to comply with regulations in three jurisdictions? Would you be more specific? Rod A highlighted version is on line at http://www.lab-project.net/tests_priv/liclab-annotated.html for review. Thanks, the highlights help enormously. It looks like the only direct changes are: 10. LICENSE means this document in its integrality, without reserve or disclaimer other than herein published. 3.2. Availability of Source Code. and if made available via ELECTRONIC DISTRIBUTION MECHANISM, must remain available for at least twenty-four (24) months after the date it initially became available, or at least twelve (12) months after a subsequent version of that particular MODIFICATIONS has been made available to such recipients. YOU are responsible for ensuring that the SOURCE CODE version remains available even if the ELECTRONIC DISTRIBUTION MECHANISM is maintained by a third party. 3.3. Description of Modifications. In your SOURCE CODE, YOU must include comments marking the beginning and end of your MODIFICATIONS, as well as your name. .4. Inability to Comply Due to Statute or Regulation. 1. Inform ORIGINAL AUTHOR of statute, judicial or regulation incompatibility and ask for an allowance to specific limitations. Attention: ORIGINAL AUTHOR can allow you to distribute a LICENSE limited COVERED CODE, but you first must ask. 2. Comply with the terms of this LICENSE to the maximum extent possible You cannot reject the whole LICENSE when only one statement is not acceptable du to regulations, statute or judicial order. Only the relevant statement may be discarded, after informing ORIGINAL AUTHOR. I don't see anything there that would be likely to affect OSD compliance. However, Section 4 seems slightly ambiguous - it might be clearer if you said, You must comply with all of the following conditions, or you must refrain from using the software. or whatever the intent actually is. I frankly don't quite understand Section 10, but perhaps that's due to the translating back and forth. One of the reson we had to change some things from CUA Office Public License have to do with French laws imposing some legal mentions on all contractual papers or forms. We had to introduce a section for French Government End Users. In final, CUA Office Public License is great, only missing non USA specific legal information. This license only fills the gap. To be honest, I am a little unhappy with all the Attentions.Some of them I agree are useful to clarify the intent and purpose of the license.Some of them seem more like commentary than clarification, for example: 2. If YOU created one or more MODIFICATIONS, YOU must add your name as a CONTRIBUTOR to the notice described in EXHIBIT A - Lab Public License Required information.. Attention: Fair practice. YOU have to be credited for your work. Perhaps it is just the language, but this article seems to require you to accept -responsibility- for the work, not that other people give you credit. A minor detail, but since I didn't carefully review all the Attentions, I'm not entirely comfortable that all of them support the license as intended. This raises a larger, somewhat sensitive issue. I greatly appreciate all the effort you've gone through to submit and revise this license to address our concerns. However, given that this is for use in France, I would surmise that you are not a native English speaker.There are several places where the phrasing and spelling seem inappropriate, or at least slightly confusing.I think it would be worthwhile for you to find a friendly English collaborator to work on the wording of the Attentions, to avoid possible misunderstandings and ensure they are aligned with the larger license terms. I don't know that this is necessary for OSD compliance, but then again I'm not sure it isn't. Best of luck, Ernie Prabhakar IANAL, TINLA, etc. -- JCR aka DJ Anubis LAB Project Initiator coordinator -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
