Archive for May, 2009

Principles of the Law of Software Contracts approved

Thursday, May 21st, 2009

“The Proposed Final Draft of the Principles of the Law of Software Contracts was approved, subject to the discussion at the meeting and to editorial prerogative. Approval of the draft clears the way for publication of the official text of this project.” (from a report to members on the  actions taken this week at the American Law Institute’s annual meeting.)

I’ll talk more about these at CAST, this summer.

This document will influence court decisions across the United States. It is the counterbalance to the Uniform Computer Information Transactions Act, which vastly increased software seller’s powers, virtually wiped out customers’ abilities to hold companies accountable for bad software—UCITA passed in 2 states, then died because it was so widely seen as so unbalanced.

The main provisions of the Principles that affect us:

(1) Companies will be required to reveal known defects at time of sale

(2) Reverse engineering will be more legally defensible. People will now have ALMOST as much right to reverse engineer software, in the United States, as they have for every other kind of product in the US. This brings us closer to international standards, making our development efforts less uncompetitive compared to most other high-tech countries.

I helped write the Principles. I wish I could give you more details about the discussion at the meeting (and will be able to by CAST). Unfortunately, I got a nasty virus last week and could not travel.

One comment. Earlier in the week, there was a lot of baloney on the web about a carefully timed letter from Microsoft and the Linux Foundation that (a) pleaded for delay because they said they needed more time to review the draft and (b) said that the disclosure requirements were very new and onerous.

Actually, the community has been aware of proposals for disclosure since 1995, when Ed Foster published widely-read articles on UCITA (then called Article 2B) in Infoworld, which were followed up by a lot of mass-media attention. There have been several follow-up reports to our community (software development, software testing) since then, including talks that I’ve given at previous CAST meetings.

In terms of awareness by LAWYERS, Microsoft has been involved in the drafting process for UCITA and the ALI Principles for longer than I have (I stated working on this in 1995; I think they started in 1989). The Open Source communities have been more variable in their activism on these laws, but several attorneys within that community have been active. More to the point, the Principles specifically exempts open source software from the disclosure rule because the distribution models (and availability of code) are so different from traditional proprietary software. The MS/Open Linux letter also complained that the ALI is treating all software transfer as if it were packaged software. This is a criticism that was applied to early drafts of UCITA (which Microsoft, Apple and IBM played heavy roles in writing) but that was pretty cleared up before UCITA was introduced to state legislatures in 2001. The ALI Principles were started after that, well after everyone in the process understood the variety of distribution models for software. Letters like this make good copy on slashdot and in blogs where authors don’t know much about the law or history of the work they’re blogging about, but as serious criticisms, they seem devoid of merit.