Re: question about Governing Law

[JBedord@aol.com]

I would agree with the "silent" advice.  The reality is that both the
publisher and the licensee avoid litigation like the plague--neither want
to incur the legal fees.  My experience is that agreements fall apart on
the business terms, not the legal and jurisdictional terms.  In over ten
years of negotiating hundreds of agreements, not a single agreement went
to court.  Generally, both parties negotiate and agree to either change
the terms or terminate the agreement.

It is unrealistic to have a publisher accept jurisdiction in potentially
50 different states, as well as international jurisdictions.  Most state
organizations require jurisdiction in their own state.  So if there is a
deadlock on jurisdiction, the compromise is that the jurisdiction is in
the defendant's jurisdiction...thus there is an incentive against
litigation.

Warm regards,
Jean Bedord
Consultant, Senior Analyst
Shore Communications Inc.
email: jbedord@shore.com

Phone: 408.257.9221
Fax: 408.252.8078 http://www.shore.com
where content, technology and people meet

(Salesmark of Shore Communications Inc.)


In a message dated 7/1/2005 8:33:58 PM Pacific Daylight Time, 
anthony.watkinson@btopenworld.com writes:

John Cox is such an expert (as well as a lawyer) that I hesitate to
disagree but if I was advising a small publisher I would go for the
"silent" approach rather than committing myself to an alien jurisdiction.
In practice of course how often do disagreements over licenses of this
type actually get to the law courts? Does anyone have any experiences of
cases?

Anthony

----- Original Message -----
From: "John Cox" <John.E.Cox@btinternet.com>
To: <liblicense-l@lists.yale.edu>
Sent: Friday, July 01, 2005 3:28 AM
Subject: RE: question about Governing Law

> Like most of these standard provisions, the "governing law" or
> jurisdiction clause is important where things go wrong.  If an agreement
> does not specify the jurisdiction in which a case is to be heard and the
> law by which the agreement is to be interpreted, there will be a
> preliminary hearing to decide which jurisdiction applies to the dispute.
> There is a complex set of rules under Private International Law that is
> brought to bear.  So omitting the jurisdiction clause introduces a new -
> and very costly - layer of legal hearings before the substantive case
> gets to court.
>
> At a more mundane level, jurisdiction is important so that both parties
> know which rules to apply - e.g. fair use under copyright law.
>
> Most publishers will accept the jurisdiction of the customer.  But
> insisting on omitting a jurisdiction clause is deeply stupid!  The only
> publishers that cannot accept any individual national or state
> jurisdiction are international organizations established by treaty -
> e.g. UN, OECD.  In those cases, ask for an arbitration clause.
>
> John Cox
>
> Managing Director
> John Cox Associates Ltd
> E-mail: John.E.Cox@btinternet.com
> Web: www.johncoxassociates.com