Should Software Licenses Hold Vendors Accountable? Microsoft and Linux Say No

Over the weekend Microsoft and the Linux Foundation issued a joint letter to the ALI (American Law Institute) objecting to some new draft guidelines. (See Microsoft's blog.) The ALI would like judges dealing with software licensing cases to enforce warranty measures so software vendors must fix bugs in their software, and also that open source contributors should be held responsible for infringements (patents for example) for contributions they make.

The joint Microsoft / Linux Foundation letter states:

"Unfortunately, as currently structured, we believe that the Principles could lead to the disruption of the well-functioning software market, increased uncertainty for software developers, and increased litigation risk."

On the one hand, my response is "duh". Shouldn't producers of a product have at least some warranty responsibility for making their software work, or providing restitution, at least for the cost of the software? Software licenses tend to be extremely one sided, in favor of the software vendor. You can negotiate some things in software license agreements in certain circumstances but it's not likely you'd get Microsoft to budge in most negotiations unless it's a very large deal (even then I'm not sure it would matter.)

Shouldn't there be more liability on Microsoft's part for putting out a product that meets their claims. Somehow, the software industry is getting away with more than they should. But I also see aspects of other sides of the argument, particularly as we'd likely be overrun by lawyers filing cases to go after Microsoft's cash.

The other provision is regarding contributors to open source software. While I don't think it's practical to hold contributors responsible as in many situations (it can be very tough to really nail down where a contribution may have come, and even more difficult to get the person to defend the uniqueness of the work.) It doesn't seem very practical but patent holders should be able to take action and have software removed when it violates a patent, open source or not.

Somehow I doubt we'll see either of these ALI recommendations strongly enforced but it's great they are at least raising the issue, resulting in an opportunity to talk about them.

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