Strange bedfellows making common cause
Earlier today, Microsoft and the Linux Foundation sent a joint letter to the American Law Institute regarding a draft of their “Principles of the Law of Software Contracts”.
Horacio Gutierrez goes into more details in “Different Business Models, Common Concerns”, over on the Microsoft On The Issues blog,
The ALI Principles are meant to provide guidance to judges and others as they interpret software licensing agreements. 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.
We have asked the ALI to allow more time for comment from interested parties reflecting the wide range of software developers and users.
Jim Zemlin writes in “Strange Bedfellows: The Linux Foundation and Microsoft”,
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.
<update> ZDNet’s Mary-Jo Foley reports that
Raymond Nimmer, a professor at the University of Houston Law Center and co-director of the Houston Intellectual Property and Information Law Institute, wrote a strong critique of the ALI draft principles, where he also objected to the proposed implied warranty
</update>
Horacio goes on to comment that
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.
Our industry is diverse and sometimes contentious, but if nothing else unites us it is that we all believe in the power of software. I hope that this represents just one of many opportunities to collaborate with the Linux Foundation and others going forward. We have a lot more we can do together.
and Jim notes that
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.
I hope that this common stand does begin to cover more issues, and especially in Europe – there’s plenty of need.
For example, last week many will have seen the headline “EC wants software makers held liable for code” which reported European Commissioners Viviane Reding and Meglena Kuneva’s joint proposal that EU consumer protections for physical products be extended to software. The European Software Association’s response (pdf) “strongly urge(d) Commissioners Reding and Kuneva to reconsider their proposal” pointing out that “the nature of the software is completely different than that of a tangible good”. Alan Cox has spoken out before too on the implications of this to the broader software industry.
As Jim says, we need to keep each other honest, but we need to more often make common cause when engaging with policy makers too, especially in Europe.