[Committee-d] Choice of law, forum and venue (Re: Today's meeting)

[Richard Fontana]

Masayuki Hatta wrote:
>>>>>> In <20061010230455.GG3716 at fencepost> 
>>>>>> 	Brett Smith <brett at fsf.org> wrote:
> 
>> * Some meta-discussion about the comment in stet about allowing
>>   choice of law clauses for Japan.

> The problem is simple -- in Japan, a contract has stronger effect than
> mere declaration of one's intent.  For example, I might not able (or
> actually, have no way) to demand a GPL-violator to release the source
> code if the court thinks GPL is my declaration, not a contract between
> us.  In this case, GPLv3 is much weaker than GPLv2.  GPLv3 DD2 is much
> better than DD1, since the "Not a Contract" phrase had gone in Cl.9,
> but there is still room to dispute.

There seem to be a few separate issues here:
1) Is there anything in *both* GPLv2 and GPLv3 that raise issues of
enforceability under Japanese law?
2) Is there anything in GPLv3 that makes it less likely to be
enforceable under Japanese law than GPLv2?
3) Should GPLv3 contain a choice of law or forum clause (and what would
it say)?
4) Should GPLv3 be incompatible with other licenses merely because those
other licenses contain choice of law or forum clauses?  I.e., should
such clauses be treated as impermissible "additional restrictions"?

I suspect that the answer to 2) is "no" (you seem to be suggesting
otherwise in saying "GPLv3 is much weaker than GPLv2", but I don't
understand the reason).

As far as I can tell, the comment seems to be implying that "GPLv3
should contain a choice of law clause, because that will turn it into an
enforceable contract under Japanese law", which doesn't really make any
sense; it seems to be a non sequitur. There are many reasons why we
don't have a choice of law (or forum) clause in either version of the
GPL, and all that is orthogonal to the issue of enforceability in
general, or of how the GPL would be interpreted in a particular
jurisdiction (as a copyright license, a contract, etc.).

Regarding 4), which is what the actual referenced part of the draft is
concerned with, I think there's something to be said for removing that
laundry list of examples of "all other additional requirements" from
that paragraph of section 7 (if only to make the license a little
shorter), although it accurately presents historical FSF policy on
license compatibility issues. There are good policy reasons for
discouraging free software licenses from having choice of law or forum
clauses, but one can imagine situations where they don't actually
operate to impose an "additional restriction" on downstream licensees.