Microsoft, Linux Foundation Find Common Ground

Last week, Microsoft and the Linux Foundation sent a joint open letter to the American Law Institute to protest the group's draft Principles of the Law of Software Contracts. The ALI, a nonprofit group whose stated purpose is "to promote the clarification and simplification of the law and its better adaptation to social needs," published the draft last August as part of an effort to give judges clearer guidelines for interpreting software licensing agreements.

The ALI is proposing that two new "non-disclaimable" warranties be added to best practice guidelines for software licensing. 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.

The GPL and many other free software licenses expressly state that the authors have no liability pertaining to the functioning--or non-functioning--of the software, said John Locke, principal consultant at Freelock Computing, a Seattle-based open-source consultancy.

"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," Locke said.

The ALI's proposal would also take away commercial software vendors' ability to draw up End User License Agreements (EULAs) that distance themselves from any kind of warranty that their software is bug-free, Locke added.

In a Sunday post to the Microsoft On The Issues blog, Horacio Gutierrez, corporate vice president and deputy general counsel of Intellectual Property and Licensing, said certain provisions of the ALI's proposal "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."

Jim Zemlin, executive director of the Linux Foundation, noted that the issue is one area in which the open-source community and Microsoft see eye to eye.

"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," Zemlin said in a Monday blog post.