Subject: Re: US-specific licenses
From: "Michael A. Olson" <mao@sleepycat.com>
Date: Fri, 01 Oct 1999 09:35:16 -0700

At 01:25 PM 10/1/99 +1000, Kirrily Robert <skud@netizen.com.au> wrote:

> Looking at the MPL, which we're considering using for a development
> project, I see a couple of clauses which are US-centric.  For instance,
> section 10 ("US Government end users") and section 11 (which mentions 
> that the license shall be governed by California state law and says that
> any disputes in which either party is in the US must be handled at the
> Santa Clara county court).
> 
> I'm in Australia.  I don't want to have to go to the US to dispute a
> license violation.  I also don't want to create YAOSL to fit my 
> particular (non-US-based) needs.  What to do?

This'll sound like advice from an ugly American, but you should take it
anyway.

I bet that you can change the MPL to suit your purposes, but you
should hire a good lawyer to make the changes for you.  For the two
clauses you mention:

Special restrictions on distribution to the US Government as an end-user
are very common.  In general, that language is intended to preserve the
rights of the licensor.  In some circumstances, work done by or for the
government must be freely available to US taxpayers.  If your intellectual
property is involved, you want to be sure that "freely available to US
taxpayers" is consistent with your own license.

Choice of venue and which state's laws cover the contract generally do
two things.

First, they establish a venue in which lawsuits should be filed.
People like to pick their home states, since it's cheaper to litigate if
you don't have to pay airfare and hotel bills as well.

More commonly, though, they identify the body of law that will be used
to interpret the license's provisions.  The different states have
different laws governing contracts, and the different district courts
hear different kinds of business claims.  California is generally
regarded as a leader in software law.  Delaware is widely considered to
have very clean corporate law, which is one reason lots of companies
incorporate there.

In order to choose governing law and venue, you need to understand both
the provisions (and the intent) of the license, *and* the body of law
that exists in the jurisdiction you choose.

These are details of the MPL, but they're important details.  You
wouldn't let the average attorney tune your device driver.  You shouldn't
take legal advice on contract language from a group of software
developers.

I'm not sure where you would find a good software licensing attorney in
Melbourne, but there's a vibrant high-tech community there, and I'm certain
that they exist.  Getting the license right will be worth the money you
spend on it.  You may be able to get some help from other Open Source
companies in the area.  A good MPL that had been developed for use there
might be worth investment from others.

					mike