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

[Masayuki Hatta]

Hi fontana,

>>>>> In <4538B6F7.1090904 at softwarefreedom.org> 
>>>>>	Richard Fontana <fontana at softwarefreedom.org> wrote:

> 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?

Basically yes, but maybe not really the problem "in" GPLv{2|3}.  Since
Moglen once asserted decisively that GPL is and has been not a
contract or agreement in the early stage of the GPLv3 revision process
(e.g. The title of DD1 Cl.9), I (and some Japanese legal professionals
I got advice) am concerned the risk that the Japanese court regards
GPL is not a contract has been considerably raised.

In other words, GPL might have been not a contract since its very
inception, but it was quite vague, and we "could" regard it as a
contract, at least in Japan.  It somehow contributed us favorably by
accident.  However, those happy days are gone now.

> 2) Is there anything in GPLv3 that makes it less likely to be
> enforceable under Japanese law than GPLv2?

So the answer is "no".  But the surrounding situation was changed, so
it might be good to put some antidote in GPLv3.

> 3) Should GPLv3 contain a choice of law or forum clause (and what
> would it say)?

I guess something like:

9' In jurisdictions that the manifest of intent makes contracts
established, conveying the Program by you shall indicate the
establishment of a contract.

might work, but I am not sure if there is any drawbacks.  IANAL, so
the wording should be polished.

> 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 am not sure about it.

> 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).

Well, you are right.  I should have said that "The legal state of Both
GPLv2 and GPLv3 became unstable in Japan, but not really because of
GPLv3 itself".

Best regards,
MH

--
Masayuki Hatta
Graduate School of Economics, The University of Tokyo