Re: [epl-discuss] Draft changes

[Terry J Carroll <tjcarrol@xxxxxxxxxx>]

I'm don't think the deletion of the last paragraph is a good idea.

A choice-of-law provision designates the rules for interpreting the license.   Without it, different licensees would have different licenses depending on what law they're interpreting it under.  An analogy for USAians might be the differences in the rules in the National League and American League baseball leagues.  Having a choice-of-law provision makes clear what rules apply and adds stability to the license.

The choice-of-law provision is not a choice-of-jurisdiction provision.  It does not mean that any dispute resolution will take place in New York, it just means that the New York rules will govern.  It's actually a pretty neutral provision.

On the no-jury-trial provision:  Although having a jury feels good, the reality is that jury resolutions are more expensive and much less predictable than a trial before a judge.  I would expect that the substantive issues in the license are not likely to be fact-based questions for a jury, anyway, but would be questions of law for the judge.  The one issue that would go to a jury would be the issue of monetary damages, and that is an area in particular where you want more predictability.  Especially in damage assessment, juries can be something of a gamble.

Finally, the one-year period also provides for stability.  There has to be some period after which someone with a complaint either has to make it or let the world go on.  If we intend for companies, especially smaller ones, to be able to make business assumptions that include Eclipse and its license, the period in which someone can bring an issue can't be lengthy or open-ended.

All of the factors in this final paragraph provide for more stability of the license and projects that use it, and I think it should be kept.

I want to look further at the derivative work/subclass wording, I may come back on that later, but I didn't want to delay my comments on the last-paragraph deletion.

--
Terry Carroll
IP Counsel
IBM Corporation, Silicon Valley Lab
tjcarrol@xxxxxxxxxx
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Mike Milinkovich ---2015-03-27 10:11:29 AM---Is everyone happy with the edits as they currently stand? I would like to move ahead to John Arthorn

From: Mike Milinkovich <mike.milinkovich@xxxxxxxxxxx>
To: epl-discuss@xxxxxxxxxxx
Date: 2015-03-27 10:11 AM
Subject: Re: [epl-discuss] Draft changes
Sent by: epl-discuss-bounces@xxxxxxxxxxx

---

Is everyone happy with the edits as they currently stand?

I would like to move ahead to John Arthorne's proposed changes around source and object code, but want to ensure that we have a rough consensus on this initial set first.

On 24/03/2015 2:01 PM, Mike Milinkovich wrote:

All,

I took a stab at some changes to the EPL for people to review and comment on. You can see them at [1].

The changes made included:
1. changing "module" to "file".
2. making use of the definition of "Derivative Work" from the Apache License, plus the addition of the phrase "or subclass".
3. Removed the last paragraph of the license which has the effect of:
a. removing the choice of law provision
b. removing the stipulation of no jury trial
c. remove the stipulation that no action can occur if the cause of the action is more than one year ago
Your comments and suggestions would be appreciated!

[1] https://github.com/mmilinkov/EPL

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