Is that flapping sound I hear the wings of pigs? Microsoft and the Linux Foundation both agree on something? Yes. In this case, it's proposed guidelines for software licensing that would make both open source and proprietary software authors that much more liable.

This tidbit actually came my way courtesy of sister pub CRN:

The [American Law Institute] is proposing that two new "non-disclaimable" warranties be added to best practice guidelines for software licensing. One warranty would make software developers liable for infringing on patents and copyrights, while the other would make contributors to open-source software liable for material defects in the software. The law currently allows contributors and licensors of open source to avoid liability by offering their wares on an "as-is" basis.

... The ALI's proposal would also take away commercial software vendors' ability to draw up End User License Agreements (EULAs) that distance themselves from any kind of warranty that their software is bug-free, Locke added.

Neither Jim Zemlin nor Microsoft's chief of counsel thinks this is a good idea, and they drafted a joint letter detailing their dismay with the whole thing.

If the purpose here is to insure that software authors cannot duck responsibility for writing bad software, there are better ways to do it. Example: pressuring software makers to provide more software in trials forms, for instance, where you can run it provisionally to determine if it suits your needs before spending money. I hardly need to recap how this is the case for a good deal of open source, but many people are not aware that many of Microsoft's own full products come in time-limited (30, 90, 120 days) editions. (It gets that much easier with virtualization, too, although that's not always the most straightforward process.)

I can't find anyone (apart from a lawyer) who actually likes EULAs or click-to-agree licensing, but let's face it: a certain amount of CYA paperwork is inevitable. Disclaimers like the ones offered in the GPL -- or in any number of other software products, for that matter -- exist precisely because software is so malleable. It's a great thing when people are able to void the warranty on something in a creative way. It's not a great thing when they mistakenly kill the neighbor's cat in the process. Since nobody who creates a piece of software can possibly account for or foresee all of its future or even present use, these kinds of disclaimers are inevitable.

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