The two organizations haven’t been what you’d call snuggle-buddies, but they’re certainly adamant about certain aspects of software enough to agree and collectively petition a legal group for redress of a document. In a somewhat surprising move, Microsoft and the Linux Foundation have joined forces in writing and signing a letter to the American Law Institute asking for the group to hold off on submitting a document entitled “Principles of the Law of Software Contracts” for adjustments.The American Law Institute (ALI) is a group that writes papers about certain complicated laws to help judges conclude right decisions when facing cases to do with said laws where the answer is far from plain. The group has been developing the Principles of Law of Software Contracts since 2004, and will be finalizing it on Tuesday during their annual meeting. If it’s approved, it’ll be published, and that wouldn’t bode so well with the Linux Foundation and Microsoft– in fact, it has potential to gum up what they both stand for pretty badly.
The section of the principles that bites Microsoft’s and the Linux Foundation’s bottoms is a part concerning warranties and defects in software. According to a ChannelWeb article, “one warranty would make software developers liable for infringing on patents and copyrights, while the other would make contributors to open-source software liable for material defects in the software. The law currently allows contributors and licensors of open source to avoid liability by offering their wares on an ‘as-is’ basis.” Apparently, if these guidelines are published as they currently are, cases involving open-source software and the liability of its creators could be judged incorrectly and unfairly. Microsoft’s and the Linux Foundation’s letter points out the flaws and requests that the association let interested parties suggest amendments so that the guidelines will better fit existing laws and practices.
John Locke (I found his name interestingly familiar), a consultant at Freelock Computing, stated the following on the subject:
Legislation that imposes a burden of providing a warranty against defects would seem to go against the GPL, which would mean people couldn’t use GPL software wherever this ALI principle was applied.
Horacio Guiterrez, Corporate Vice President and Deputy General Counsel at Microsoft, said in his blog post:
While the Principles reflect a lot of hard work and thought by the ALI, Microsoft and the Linux Foundation believe that certain provisions do not reflect existing law and could disrupt the well-functioning software market for businesses and consumers, as well as create uncertainty for software developers.
It’s not as if Microsoft and the Linux Foundation don’t notice that it’s strange for them to be working together on this in lieu of their vastly different business models. Guiterrez also said in his post:
The mere fact that the Linux Foundation and Microsoft are joining forces may be viewed by some as remarkable, given that our differences receive far more public attention than when our interests converge. But there is a wide range of issues that affect all software developers alike.
What’s really interesting is that he seems to hope that the two organizations will work together more like this in the future instead of work apart, contentiously or not. He also seems to think that there is much that the Linux Foundation and Microsoft could accomplish together. While this is true, I don’t foresee such apocalyptic happenings coming to pass anytime soon. You never do know, though. This news in and of itself was a surprise.
Do the new guidelines address public domain as well? Can nothing be put into the Commons without liability?
Public domain has its own existential difficulties in Europe, of course.
Good point, Braddock.
I think it’s very important to be able to keep the ability to be able to release software on an “as is”
basis. Lots of people are happy to use software released on that basis, and for those who aren’t, there is always paid support by (say) Red Hat, Novell and so on.
Things can be sold on places like EBay and other such sites on an “as is” basis. Software should be no different.
There have been talks in the EU for warranties on software as well.
What is interesting is the draft guidelines were approved yesterday in record time. Not sure the letter had any impact.