Hi,
I am from Canada but my two cents (or 200$ given the size of this email)
I reviewed and signed about 2 dozen contracts in the last 25 years.
Some from 50.000 up to milion dollars
(ok the canadian dollar was not always on par with the US dollar :)).
On both sides of the border, some with US corporations, more with
Canadian businesses.
Rarely needed a lawyer after the first two contracts.
I agree our lawyers in Canada might not be all arrogant bastards but I met some
sitting on the other side of the table that were arrogant enough to warrant
a couple of punches.
Objection 1:
This would be a civil litigation if any starts.
Any civil contract needs to be resolved somehow against a set of laws.
It's perfectly normal to mention against which set of laws
a litigation is to be argued over. In this specific case it's too bad but the
Eula cannot be granted to accommodate every geographic location.
The jurisdiction is always specified (including I remember once the state
of NY). It's normal business conduct.
In a civil contract you can even agree to an arbitration process which
is not based on a court. The arbitration mechanism (whom and where)
will be specified and you are binded by this. If arbitration occurs not in your
favor, good luck trying to overturn this in court if it had been sighed in good
faith.
Objection 2:
Not true. Read a.
It's not a criminal offense to breach a civil contract, in Canada it has
nothing to do with federal courts upfront. It runs through lower courts
first and escalate to upper if justified (if a civil law itself is challenged,
not
the case itself).
I suspect that a civil suit would start in a state court or lower court in the
US
and then eventually escalate.
DOJ has nothing to do it except if you breach a law which then results in
a criminal offense.
I even saw contracts were the other party was requiring us to abdicate the
right to invoke specific civil right laws or portion of it.
Never signed these ones or got these clauses removed. It's not illegal here but
once signed it's a lot of trouble to overturn.
A contract breach does not always result in a law suit. There are many steps
in the escalation process.
3) General appreciation of lawyers in the context of software contracts
Remember, lawyers, especially newbies, does not grasp the reality of
businesses in many cases. The field of practice also influences the output.
I saw lawyers specialized with penal trials flunk in simple civil trials.
I even had a lawyer counseling one my customers to impose us not to
reuse any ideas patentable or not in any future contracts with any one else
including businesses in other domains. That was a total invention with no
legal basis in Canada.
My reply to this customer was that he had to buy us then and put our brains
in some liquid or freeze them for later use after the job was done.
We would not sign this.
He agreed that this was abusive and removed it from the contract.
His lawyer firm is the biggest and meanest in Canada having several
offices across Canada and above 1000 lawyers. Obviously not a guarantee of
best judgement....
Software to most lawyers is an alien thing. If you end up with a lawyer having
no experience with this, your best bet is to demonstrate with real life
scenarios how unrealistic his approach his. In front of the buyer obvisouly,
not behind closed doors.
Here he's obviously confusing source code modifications with plain runtime
usage and he's making up horror movies in his mind.
If you do not challenge him with real evidence, you will not
make any progress. Do not hesitate stepping in his domain expertise and
challenging him about other cases that you may find.
The Eclipse stuff here is a great example. By forcing him to explain why
this real life cases is ok and not yours, you will most probably debunk
is made up horror stories. He may even learn something along the way.
Fight back with common practices to counter is arguments.
Ask him how he would resolve a litigation and explain why the jurisdiction
choice would impact it ?
Some lawyers are pragmatic others not. Any business deal is a pragmatic
compromise, if a business deal is a win-loose you should walk away
if you would become the looser.
Bring him on the grounds of reality. Then it should be easy to shot him in
flames if he's making up a story to "look professional". The scenarios will
look so unrealistic that people will laugh around the table except him.
P.s.: show no mercy, after the deal his done there's a 99.999% probability
that you will never seem him again assuming your did your end of
the job correctly. Make yourself some fun out of this :)
Eating a few lawyers or DBAs in your cereals at breakfast time is good
way
to start the day :))))) (Billy Idol, White wedding playing in my brain
as I type)
Luc P.
> Hello;
>
> Developing web site for government using Clojure on back end- lawyers
> reviewing EPL had objections. Would appreciate any advice on how to deal
> with them.
>
> Again- web site, not distributing or modifying Clojure. I have no expertise
> with Open Source Licenses or lawyer-ese jargon.
>
> These are the specific objections- do they even apply in the context of web
> services?
>
> 1. "This Agreement is governed by the laws of the State of New York". Not
> acceptable: The federal government cannot agree to be bound by state law.
>
> 2. "Each party waives its rights to a jury trial in any
> resulting litigation". Not acceptable: Only DOJ can control litigation.
>
>
> THANKS!!
>
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