Subject: Re: jurisdiction and venue
From: Brendan Scott <lists@opensourcelaw.biz>
Date: Tue, 31 Jul 2007 12:56:13 +1000

Russ Nelson wrote:
> Ned Lilly writes:
>  > Are you permitted to change the jurisdiction and/or venue in an
>  > OSI-approved license?  For example, if I wanted to use the new
>  > CPAL, I see that it is governed by California law, and the venue
>  > for any litigation would be Santa Clara County.
> 
> No, you can't change it.  The license author expects their language to
> be construed according to California law and the District Court that
> Santa Clara lies in.
> 
> I would note that the Microsoft licenses specify neither jurisdiction
> nor venue.  Possible that they don't care where they get sued because
> they're everywhere.  On the other hand, you could get sued somewhere
> where copyright violations are punishable by death.
> 
> NO obvious solution lying around.
> 
> Or, rather, all the obvious solutions create worse problems.

Jurisdiction clauses for licences are clearly problematic.  It will not always be clear
what it means to apply the law of jurisdiction X where the text itself is wholly a statement
of an exception to prohibitions in the law of jurisdiction Y (at least to the extent
it relates to activities in jurisdiction Y).  

That said, I can't see why, if the copyright holder of an independent program used the
licence text and:
(a) changed the jurisdiction;
(b) deleted of the jurisdiction specific elements; or
(c) added a rider nullifying the jurisdiction specific requirements

(if that's the whole of the changes) that would cause an otherwise OSI-compliant licence
text to become OSI-non-compliant.  Technically it's a new licence and therefore would
no longer be OSI approved.  

There is an additional question of whether such a change would be an infringement of
copyright in the licence text. 


Brendan