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Re: [epl-discuss] Draft changes

On 30/03/2015 11:24 AM, Jim Wright wrote:
On the last paragraph, I tend to agree with Terry for the most part, but because some of our colleagues in the EU or other jurisdictions may have good reasons for wanting their own law to apply, and far be it from me to tell some non-US based coder he needs to use my law, I might allow authors to set a choice of law which is different than a default in NY - perhaps through the use of an external choice of law selector (a file like I used in the UPL, a designator in the license text, or some other mechanism).   

Jim, Terry,

I find the position of lawyers on this topic to be curiously unsupported by the facts on the ground. I understand why, in the abstract, a choice of law provision is appealing. However, it is clear from the data that you and your client organizations both use and distribute vast amounts of code based on licenses which do not have a choice of law provision.

Let's take a look at the top-10 licenses as ordered by Black Duck[1]. You will note that the EPL at #10 is the first license to have any choice of law provision[2]. Given that 91% of all of the code analyzed by Black Duck is not covered by a choice of law provision, why is it controversial for the EPL to follow what appears to be standard and accepted industry practice?

FWIW, in 11 years in this job, I've had many more conversations about how the choice of law provisions hurts EPL adoption more than I have about how happy people are that it is there. Granted, happy people aren't motivated to call.

Rank License % Choice of law
1 GNU General Public License (GPL) 2.0 25% none
2 MIT License 19% none
3 Apache License 2.0 16% none
4 GNU General Public License (GPL) 3.0 10% none
5 BSD License 2.0 (3-clause, New or Revised) License 7% none
6 Artistic License (Perl) 5% none
7 GNU Lesser General Public License (LGPL) 2.1 5% none
8 GNU Lesser General Public License (LGPL) 3.0 2% none
9 Microsoft Public License (MS-PL) 2% none
10 Eclipse Public License (EPL) 2% State of New York

Sum of licenses 1 through 9 91%


[2] Indeed, you have to go the Mozilla licenses at #12 to find a reference to choice of law. It has an interesting approach where the defendant in the suit gets the venue and the law.

Mike Milinkovich
+1.613.220.3223 (mobile)

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