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

[Richard Fontana]

Masayuki Hatta wrote:
>> 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.

I think Eben's statements on the subject (and the significance of that
original section heading) may have been misunderstood; after all, that
is why we changed the heading.

The references to acceptance (a concept that I think only makes sense
under contract law, in the US or anywhere else) acknowledge implicitly
that questions of contract formation will sometimes be relevant in some
legal systems. The basic point of this section (at least as I read it)
is that there is pure, unlimited permission to run the program as you
receive it, a permission which ought to exist outside of any notion of
contract.  If your local legal system insists on treating the GPL as a
contract, the GPL still does not start out as a contract (and indeed for
most users it never becomes a contract). If you force the licensee to
manifest contractual assent to the GPL in order to receive or run the
program, as some free software licenses do, you have added an additional
restriction in violation of section 10. All of the conditions on
permission that the GPL places on licensees apply only once you modify
or propagate (copy, distribute, etc.) code.

I forget whether I said this in my previous message, but we have some
German legal experts on Committee C who have discussed these issues with
us.  In their view, under German law, the GPL is a contract, but "mere
use" (including running the unmodified program) exists outside of the
GPL.  My understanding is that Japanese contract law was originally
modeled on German contract law, so perhaps similar interpretations would
apply under Japanese law.

>> 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.

I actually think this is already there, in different words, in section
9, because it says that "by ... propagating the Program (or any covered
work), you indicate your acceptance of this License to do so".
Acceptance is a contract law concept - for a contract to be established,
there must be acceptance.  (It may be that we should have "conveying"
there instead of the broader "propagating", as some Japanese lawyers
recently pointed out to us -- GPLv2 section 5 says that distribution
indicates acceptance, but not mere copying, and non-conveying
propagation is permitted without limitation under GPLv3.)

-- 
Richard E. Fontana
Counsel
Software Freedom Law Center
tel. 212-461-1909
fax  212-580-0898