Category Archives: LEGAL Implications

Microsoft, Linux Foundation issue joint letter opposing proposed software-licensing principles

Truth can, indeed, be stranger than fiction — as is evidenced by a May 14 letter on software-licensing policies that was signed by both Microsoft and Linux Foundation officials.

The letter, which the two sent to to the American Law Institute (ALI), was designed to “express our shared concerns with the group’s draft Principles of the Law of Software Contracts,” according to a blog post by Horacio Gutierrez, Microsoft’s Corporate Vice President and Deputy General Counsel.

(Yes, that same Horacio Gutierrez who is known for claiming free and open-source software violated 235 of Microsoft’s patents.)

According to Gutierrez’s latest blog post, while Microsoft and the Linux Foundation have been almost always on opposite sides of the software-licensing fence, they both agree that the ALI Principles — designed to provide guidance to judges and others charged with interpreting software-licensing agreements — could do more harm than good. Gutierrez blogged:

“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.”

The joint letter to the ALI specifically highlights the policy body’s call for a non-disclaimable “implied warranty of no material hidden defects” as being onerous to both Microsoft and the Linux Foundation. (The Linux Foundation has been objecting to this proposed implied warranty and its possible negative effect on free and open-source software since at least August 2008.) Microsoft and the Linux Foundation both are advocating that by making this warranty disclaimable, vendors will be more willing and able to offer customers their applications and services under a variety of software-licensing models. (That’s my best attempt at explaining this; I’m sure folks more conversant with legal language will be able to chime in as to exactly what the pair want….)

Update: Linux Foundation chief Jim Zemlin explains the warranty issue in a May 18 blog post this way: “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.”

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

Nimmer blogged on May 11: “(I)f the (implied warranty) ‘principle’ were followed, the software industry would be subject to a rule that does not apply to any other industry. Why discriminate against one of our few burgeoning industries?”

The ALI’s annual meeting — where the final vote by memebers on the proposed draft of the Principles is expected — takes place this week.