Ucita and open source

Why, according to a microsoft lawyer, the controversial new contract law for software is the basis for the success of free software

Unexpected support seems free software or open source by robert w. Gomulkiewicz, a senior lawyer at microsoft, and not as microsoft’s or the company’s. Of course, the views that he expresses in his article on licensing rights (ms word download), he expresses as "personal opinion" and not referred to as those of microsoft or the business software alliance.

The background of the article is a bill, which is supposed to regulate the contract law for "computer information" (read more in a bill about software causes trouble in the usa). The uniform computer information transactions act (ucita), or article 2b of the uniform commercial code (ucc), is supported by software vendors such as microsoft and advocacy groups such as the business software alliance, but is otherwise largely met with opposition. In defense of the bill, which is accused of serving only the interests of software manufacturers, gomulkiewicz argues that it is precisely the revolution triggered by the free software that ucita can continue to require.

The computer industry, according to gomulkiewicz, is starting from a "rough thing" to the next with astonishing speed. After the graphical user interface, object-oriented programming, multimedia software, networked computers or the internet, the newest "rough thing" now the "open source" software being developed by a group of programmers who are "hackers" be called. The advantages of free software mentioned by hackers are that the disclosure of the source code and the free changeability of the software lead to a higher quality and faster elimination of bugs than in the case of commercial software, the source code of which is a trade secret and which is sold with different licensing conditions. In addition, free software is cheaper than commercial software.

Gomulkiewicz says it is no surprise that a new revolution has occurred in the computer industry with free software such as linux, but that at the heart of this revolution are licensing terms. The "copyleft" does not differ fundamentally from the licenses of commercial software, but only by certain conditions tailored to a mass market. Free software is therefore not a public good. Hackers secure copyright and want to control what is done with their code, whereas free software without a license is only a "recognition system" his was.

At the heart of the argument is the fact that in free software, licensing in a standardized form is considered to be a "free" form of licensing "take-it-or-leave-it" the only thing that happens is that there is no mass licensing, no guarantees of performance, and no liability for copyright infringement on the part of a third party: "the purpose of this condition is clear: to keep risks away from the programmer."

The ucita draft, however, is criticized by consumer groups for legitimizing mass licenses that are non-negotiable, standardized, and in the form of a "free license" "take-it-or-leave" are held. It is precisely on such mass licenses, concluded between two anonymous parties via the internet, that free software is based, since only in this way can the general terms and conditions of the "copyleft" which ensure that the software is free, can be guaranteed.

The ucita draft has also been criticized for leaving the contracting parties free to decide how to regulate the liability of risks, i.E. To avoid liability on the part of the producer and to transfer it to the licensee. For example, consumer groups argue that manufacturers should not be allowed to limit their liability for damages in the case of mass-market licenses. For the free software however the passing on of the adhesion to the licensee is however straight the basic condition, after all each software, even one from "high quality", inevitable bugs, and third-party copyright infringement cannot be completely eliminated: "individual hackers do not want to take on the risk of a multi-million dollar damage lawsuit as a result of their passion to hack code." a "low risk" the free software draft was also intended to create the conditions for everyone to participate in programming, even if they could not afford insurance and expensive lawyers. This in turn keeps the cost of free software low. Since the ucita draft provides that license terms can be freely formulated even for mass-produced products, it calls for free software, since its success depends on the aforementioned license terms. "Article 2b should contain contract laws that allow revolutionaries like the open source hackers to succeed." and if free software is doing well with ucita, this coincides surprisingly well with the interests of the commercial software vendors who are lobbying for ucita.

Naturally, however, gomulkiewicz makes a small detour at the end to demonstrate why, from the perspective of licenses, commercial software may be better for the customer after all: "the unwillingness of open source software programmers to provide guarantees, or their inability, even without written liability terms, to establish confidence that there will ultimately be someone responsible if something goes wrong, is a flaw in the claimed value of open source software." this shortcoming, according to gomulkiewicz, is where commercial software vendors could take advantage if open source developers don’t find ways to minimize their own risks while convincing customers to do the same, "that they stand behind their products when necessary."

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