Standard international software licences: a pipe-dream?

opiumMany years ago, when IP Draughts was a junior associate, one of his regular clients was a software standards organisation whose members included most of the world’s largest computer companies. Although the organisation was UK-based, many of its members were US corporations.  On more than one occasion, IP Draughts heard members encouraging the organisation’s UK staff to be more international in their outlook, which in practice seemed to mean being more American.

On a similar note, IP Draughts vividly recalls the person who gave him instructions on behalf of this organisation, a lady with the title Head of Legal and Commercial, or similar, making adverse comments about an English court judgment that came out at the time. The judgment concerned the interpretation of a software licence, and IP recalls that it took a different line to a US judgment on a similar subject. The client seemed to be offended that an English court took this decision, and she was of the opinion that it was not in the UK’s interests to have laws that differed from those of the US in the area of software transactions. It should be pointed out that this client was English, but her working experience was in a US commercial environment. IP Draughts suspects that if she had been a US national she would have been more diplomatic in her comments, if she had chosen to make any comment on such a subject to a snotty-nosed English lawyer in his twenties.

These memories are prompted by two recent events.  The first is the striking observation by Larry Page, the head of Google, in light of the recent European case on the “right to be forgotten”. He is reported as saying that he regretted not being “more involved in a real debate” about privacy in Europe, and that:

We’re trying now to be more European and think about it maybe more from a European context… A very significant amount of time is going to be spent in Europe talking.

leido bookSome of the commentary on this subject has suggested that, for a US organisation, freedom of speech is a constitutional right which trumps other considerations; by contrast, European laws and attitudes, while they value freedom of speech, don’t give it this kind of overriding status.

The second event that prompts this memory is the publication of a new book, Realising the Single Software Market: Cross-Market Validity of Software License Agreements, by Jan Leido. This 627-page book is the PhD thesis of Mr Leido, a research student at Umea University in Sweden, and according to his website biography he is due to defend his thesis orally next week.

The book compares US and German laws in relation to software licensing, and as the abstract explains:

…cross-national validity of certain standard software license agreements is examined as a solution to overcome national differences and improve the emerging single software market. Cross-national validity is mapped, explained and improved under American and German law.

This book is an impressive mixture of academic and commercial discussion of the many factors that affect international software licenses and their validity, and deserves a wide audience. If IP Draughts had read it 25 years ago, he would have been armed with much better answers to the peevish complaint of his former client. More seriously, the book should be part of the prior reading for anyone involved in advising major consumer software providers on their international licensing terms.

IP Draughts wishes Mr (and surely soon to be Dr) Leido the best of luck with his viva voce.

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