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Re: choice of law clauses and GPL

From: Alan Mackenzie
Subject: Re: choice of law clauses and GPL
Date: Thu, 20 Aug 2009 08:50:00 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

Tim Smith <> wrote:
> In article <h6hu9h$133g$>, Alan Mackenzie <> 
> wrote:
>> > 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.

> You can start here if you want to know more about how choice of law 
> works:

>   <>

No, I do NOT want to waste time reading some barely relevant highly
abstract nonsense.  I want you to explain how a Saudi Arabian hacker,
working on something with a license mandating Canadian law, being sued
by the Canadian licensor, could get the case heard in his local Saudi
Arabian court - for some values of "Canada" and "Saudi Arabia" which
aren't merely things like two states in the USA.

> It can get complicated. There was a case we studied in law school ....

Sure there was.  It was in "state X", and involved judges speculating
about choice of law rules in "state Y" and "state Z".  Or something like
that.  Fine.  This thread isn't about finite state machines.

Please supply a proper example of:
(i) an individual (or small company) having an alien system of law
  imposed on him in a license on a take-it-or-leave-it basis;
(ii) his being sued by the licensor
(iii) his getting the case resolved under the alien system of law in his
  local court.

> As to how it works. The court in jurisdiction X decides what law 
> applies.

This has nothing to do with the topic at hand.  The modified GPL license
for a piece of code says disputes are governed by Californian law, so
there is nothing for the X judge to resolve here.  Supposing I was sued
for allegedly breaching the licence.  Please explain to me the process I
would have to invoke to get the dispute settled under California law in
a court in Nuremberg.  For this to be of any use to me, I mustn't have
to travel to California, or engage a Californian lawyer to achieve this.

> Basically, in a contract case, specifying the law of jurisdiction Y 
> essentially just means that the parties are agreeing to Y's rules for 
> interpreting the contract. I see nothing in that that conflicts with the 
> GPL.

You may be right, here, but this isn't the point.  The point is that the
licensor imposing Y's laws on the licensee reduces the latter's freedom,
which goes against the spirit and intention of the GPL.

> Don't confuse a choice of law clause with a choice of venue clause. The 
> later specifies the jurisdiction in which lawsuits must be brought.

I think it's you that's getting confused.  If the choice of law is
Californian, the case can't be decided in a German court.  Or do you
disagree with this?  Again, produce an example of a real case, please.

Alan Mackenzie (Nuremberg, Germany).

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