[odc-discuss] Choice of law clause

[Jordan S Hatcher]

There has been a technical discussion about the Choice of Law clause  
(10.4) in the release candidate over on legal-talk.  This email is to  
publicly address some of this conversation.

I am of the position that a specific jurisdiction should NOT be set  
for the ODbL.  There are several unanswered  technical legal questions  
about implementation of such a clause.  In addition, we'd need to  
consider a serious review/redraft of the ODbL, causing delay and  
sucking up bandwidth late in the game.  Also for reasons of fairness  
-- I think it is unfair to try to make  all users (licensors and  
licensees) from across the globe use one single jurisdiction that they  
have no familiarity with nor affordable legal counsel to explain the  
specifics its application (as it will by definition involve foreign  
law for all jurisdictions save one).

(below is an edited copy of an email sent to the advisory group)
===
I realise that this email is a bit long, so four major points at the  
start:

1.  There are several technical legal points around putting in a  
choice of law clause, see below.  I don't see how we can progress  
without answering these in some detail if the clause is to be  
inserted. We can of course progress with the current clause without  
needing to address these questions.

2. The ODbL was drafted as a worldwide public license to be widely  
applicable but not overly specific to one jurisdiction. To set a  
specific jurisdiction's law would mean, to me at least, a thorough  
redraft/review of the ODbL to make it tightly fit to that specific  
jurisdiction. Otherwise, what is the point of setting the jurisdiction?

3. The baseline for comparison is not other commercial contracts (b2b  
or b2c), but rather other open licenses.  It is my understanding that  
very few of the widely used open licenses (for software or content)  
have a choice of law clause.  The ones that do tend to be specific to  
an organisation (Mozilla's MPL, etc).

4. How "fair" is it to our users to set jurisdiction in one place?   
Though OSM will be our first and a major user, I don't see how it  
would be a good thing in terms of usability and fairness to try to  
make the entire planet use one specific jurisdiction, through  
essentially the use of browserwap/clickwrap.

====

Technical legal points:

===
Separate out the "contract part" of the ODbL for enforcement while  
leaving the copyright and database rights parts to be on a nation-by- 
nation protection.
---
There has been a suggestion that a choice of law clause in the ODbL  
could only apply to the contract part of the copyright-database rights- 
contract triumvirate.  It's not immediately obvious to me that this is  
true with a standard "The choice of law is X" clause.  I'll admit that  
my private international law / conflicts of law skills are a bit  
rusty, so please chime in with your thoughts. This is in relation to  
what law would apply, rather than whether a particular court can take  
jurisdiction over a case.

===
If there was to be a jurisdiction selected to be the home of all three  
parts of the ODbL (copyright, database rights, contract), what  
jurisdiction would work best?
(a/k/a, even if we decided to have one, how would Open Data Commons  
choose a jurisdiction?)
---
There has been the suggestion of "the US" and "the UK" as the two  
choices.  The UK people on this list will well know that there isn't a  
single jurisdiction, particularly in regards to contract rules, within  
the United Kingdom.  My suggestion is that if there was to be UK  
choice of law clause, it would be Scotland as they don't faff about  
with consideration in their contracts.

On the US side, it isn't one jurisdiction either (51+ actually), and  
we'd have to pick a specific state.  If it isn't Texas, then I'd just  
be guessing as to which one would be the best to choose. Defaults  
would seem to be either California or New York given other commercial  
practice, but again, not clear to me of the benefits of using either.

===
Unfair contract terms implications with picking a choice of law.
---
If a choice of law clause was included, how would this interact with  
consumer contract legislation (as public licenses are essentially  
contracts of adhesion)?  Specifically for you European IT lawyers,  
what about Rome Convention/ UK Unfair Contract terms rules?

===
How enforceable is it?
---
This is an extension of the previous section.  How enforceable would a  
choice of law clause be in a public license setting, especially one  
built around a worldwide userbase (both licensors and licensees)

===

In the end, I think that we stick with what we got and if there is to  
be any jurisdiction setting, that it happens in a future license.

Thanks

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan [at] opencontentlawyer dot com

More details at:
<http://www.jordanhatcher.com>

Open Data at:
<http://www.opendatacommons.org>
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