11. Jurisdiction, Venue, and Governing Law

11. Jurisdiction, Venue , and Governing Law

Both OSL and AFL

Any action or suit relating to this License may be brought only in the courts of a jurisdiction wherein the Licensor resides or in which Licensor conducts its primary business, and under the laws of that jurisdiction excluding its conflict-of-law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any use of the Original Work outside the scope of this License or after its termination shall be subject to the requirements and penalties of the U.S. Copyright Act, 17 U.S.C. § 101 et seq., the equivalent laws of other countries , and international treaty. This section shall survive the termination of this License.

Potentially ”perhaps inevitably ”there will be litigation concerning the OSL/AFL. Jurisdiction determines which courts shall have the power to hear the case. Venue determines the location of that court . And governing law determines whose laws shall apply. There are only three choices for jurisdiction, venue, and governing law: (1) the licensor's home turf; (2) the licensee's home turf; or (3) some neutral territory (is there such a place?).

The OSL/AFL licenses forthrightly give the advantage to the licensor by specifying the licensor's jurisdiction, venue, and governing law. I believe that is appropriate considering that the licensor is the party giving away the open source software. It would be unfair to subject a licensor to the licensee's courts for something that he or she gave away for free.

The provision doesn't necessarily mean that litigation will take place in the licensor's resident state or country. A licensee may choose to bring litigation in any jurisdiction "in which Licensor conducts its primary business." A major distributor that conducts its primary business throughout the world is subject to being sued in any of those jurisdictions. That also seems to me to be a just way of softening what would otherwise be a licensor's unfair advantage.

The reference to the "United Nations Convention on Contracts for the International Sale of Goods" is intended to ensure that an OSL/AFL-licensed Original Work is treated as intellectual property, not as goods. The laws relating to goods are far more complex than I can deal with in this book.

The third sentence of this section is particularly important:

Any use of the Original Work outside the scope of this License or after its termination shall be subject to the requirements and penalties of the U.S. Copyright Act, 17 U.S.C. § 101 et seq., the equivalent laws of other countries, and international treaty.

This ensures that the requirements and penalties of copyright law will be effective to punish anyone who copies, creates derivative works, distributes the Original Work without a license (i.e., if the formalities of offer, acceptance, or consideration fail), or after the license is terminated .

Comparison to Other Licenses

None of the academic licenses in this book (i.e., BSD, MIT, Apache, or Artistic) say anything about jurisdiction, venue, or governing law.

The authors of the GPL intend the governing law to be copyright law. The license itself says nothing about jurisdiction or venue.

Under the MPL, jurisdiction is the Federal Courts of the Northern District of California, venue is in Santa Clara County, California, and governing law is California. The MPL also excludes the application of the United Nations Convention on Contracts for the International Sale of Goods.

Under the CPL, jurisdiction and venue aren't specified, but governing law is the law of New York and the intellectual property laws of the United States of America. Jurisdiction and venue aren't specified. Any licensor intending to distribute software under the CPL should consult with an attorney to determine jurisdiction and venue in the absence of a license provision stating it.