Today the Linux Foundation issued a joint letter with Microsoft to the American Law Institute regarding a draft of their Principles of the Law of Software Contracts.
Who is the American Law Institute (ALI)
The ALI is a hardworking group that engages legal experts around the country who write “restatements of the law” or legal treatises in hopes that judges will use them in deciding cases. In order to participate in this process you need to be a member. You have to pay a fee to access material, and there is no public review prior to publication. This is why we decided to participate in drafting this open letter.
Why is this important?
The principles outlined by the ALI interfere with the natural operation of open source licenses and commercial licenses as well by creating implied warranties that could result in a tremendous amount of unnecessary litigation, which would undermine the sharing of technology.
There are times when we can agree
Sam Ramji, Microsoft’s Senior Director of Open Source and Linux Strategy, recently attended the Linux Foundation Collaboration Summit to participate in a panel titled, “Why we can’t all get along.” While Sam heard a lot from people in the Linux world about where we disagree, he also pointed out that there are areas where we can agree and work together for the betterment of users of technology. This is one of those cases.
As Horacio E. Gutiérrez, Microsoft Corporate Vice President and Deputy General Counsel points out in his blog and the letter also states:
“Notwithstanding our varying approaches to the licensing and distribution of software, we share a common desire for a sound, effective commercial law framework for software contracts that reflects business and community realities. Such a framework will ultimately increase the variety and functionality of software available, benefitting both businesses and consumers.”
Today we are finding common ground with Microsoft and we look forward to potential collaboration in the future as well as to competing in the market and keeping each other honest.
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If you buy a product, you have some common-sense expectations about it. That’s what the lawyers are trying to capture here. If you buy a pair of pants and they fall apart in the wash, the manufacturer can’t just print “ha ha no warranty” in the fine print on the label.
Likewise, if you participate in an online development process, you don’t expect to get perfect code every time you do a “git pull origin”, just as there’s no warranty that a drug that produces positive results in a medical journal will cure what ails you.
Arguing for an unconditional right for fine-print-writing lawyers to protect their clients from the consequences of shipping broken products would be counterproductive. The software industry needs to label software as either technical communication or actual product, and apply the appropriate level of liability to each.
A TiVo or a BMW iDrive is a product, and no fine print should make it a non-product. A Windows 7 beta or a kernel.org download is a technical communication within the industry, and should be treated as such. The software industry is maturing and dealing with regular people on their own terms. We shouldn’t make the same mistake the credit card industry did–arguing for one-sided terms until the whole thing started to collapse.
The push for software liabilities is long overdue, and should be welcomed.
I myself have been useing (and writing) GPL code since 1994, and I can say that Linuxfoundation.org is NOT speaking for me when they’re against software liabilities.
The only thing we need is that the amount of damages is proportional to the amount of money paid (nothing for open source, unless you choose to pay a company such as Redhat / Novell).
I strongly urge linuxfoundation.org to reconsider their point of view.
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While it’s true that the ALI councilpersons are “hardworking,” it’s also true that the ALI was created by a bunch of well-heeled and politically powerful Wall St. lawyers whose codification of the common law has focused on making the courts run better — for their varying interests, that is. I hope your letter has an effect on them, but I wouldn’t hold my breath.
[…] Linux Foundation en Microsoft hebben een gezamenlijke brief gestuurd naar het invloedrijke American Law Institute. Ze waarschuwen voor de negatieve gevolgen […]