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Comment To FTC On Software Warranties And UCITA
Bruce Perens writes: "The U.S. Federal Trade Commission is running a forum on software warranties and UCITA. This is of interest to free software authors because UCITA and other proposed law actually require warranties on the software you give away that would cause great hardship to free software authors. It's of interest for proprietary software users because the warranties attached to software that you pay for are generally considered inadequate.FTC is soliciting written comments, the due date is Sept. 11. Full details on how to comment are here."
This is far from "perfect," but it's the best I could manage.
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1. Personal Background--I am the Internal Systems Administrator for a small internet company in Austin, TX. Our business both consumes and produces software, so I am very familiar with the issues at hand. In many instances, I have to evaluate software for purchase so warranty regulation is a concern for me in the workplace. Additionally, I use a computer at home and software reliability is a concern there as well.
2. In the interest of intellectual honesty, I should disclose that I believe the notion of "intellectual property" is patently absurd (pun intended). However, as current law is based on said notion, this response will address the issue as given. Eben Moglen, attorney for the Free Software Foundation, http://fsf.org, and Professor of Law and Legal History at Columbia Law School, has written an excellent paper on this very subject at http://emoglen.law.columbia.edu/my_pubs/anarchism. html.
3. Occupationally and personally, I am very involved with Free Software. Typically, licenses for such software disclaims warranties of any sort as the authors usually give the software away including human-readable source code (e.g., http://www.fsf.org/copyleft/gpl.html). The authors of such software often have neither the legal expertise nor the financial backing to warranty their software. Rather, they give the source code itself away as a replacement for a warranty. The source code gives the consumer the ability to examine for herself whether a given program is reliable and well-engineered. If the consumer is not capable of reading source code, or is simply too busy to do so, she has several options available. Many Free Software projects have homepages, mailing-lists, and large numbers of current users. It is not difficult to find information on the reliability of the software, even if forced to email the original author (which is sometimes the case if the project is a niche project of interest to only a few people).
4. Additionally, many companies offer "support" (telephone help-desk support, specially tested packages of Free Software, security auditing, custom software development, etc.) for Free Software (e.g., http://www.redhat.com, http://www.linuxcare.com, etc.), even though the software itself is not warranted. This suggests that the companies are confident enough in Free Software such that they may reap profits from unused support.
5. It could be argued that these companies would want the software to be shoddy so that more consumers would pay for support. However, this view ignores the fact that support companies are more like insurance companies: they are there when you need them. Legality aside, it is not in the best interest of a medical insurance company to pay ruffians to maim their customers in order to drive up demand as the payout for each claim is significantly higher than the loss of demand for medical insurance. Similarly, it is significantly cheaper for a support company to pool its resources into providing good software in the first place rather than providing costly telephone or emergency source code-level support.
6. While it still might seem that Free Software is more likely to need warranting against ill-effects than proprietary software, one need only witness why many Free Software projects arise in the first place. Often, a proprietary product that fills a particular niche is unstable, less than featureful, or generally not well-supported. An industrious coder will want to "scratch that itch," so to speak, and starts a project to create a free alternative. The Linux kernel, http://linux.org, SAMBA, http://samba.org, and many other Free Software projects are good examples of this. Linus Torvalds was unhappy with the sad shape of consumer operating systems available for his lowly 386 and set out to create an alternative kernel to run on the tools created by the GNU project, http://gnu.org. SAMBA exists due to users unwilling to run an unstable operating system or pay insane amounts in licensing fees simply to serve files to others still using legacy proprietary systems.
7. In essence, Free Software exists in part due to market failure. Instead of wooing customers with good products and good service, many proprietary software sought to lock consumers into their products and intentionally implanted incompatibilities to force customers to upgrade or be left behind, less able to effectively communicate with their partners who were licensed newer versions. Unwilling to sacrifice money or features to these ingrates, coders like Torvalds opted to create their own software and license it in such a way that it couldn't be coopted by unfaithful companies. Although Linux did not come along until 1991, the aforementioned GNU project was founded by Richard Stallman in the Eighties to combat the same sorts of tactics used by the old Unix vendors before the advent of the near ubiquitous consumer desktop.
8. Consequently, it is only because of negligent proprietary software vendors that laws requiring software to be warranted appear necessary. Not surprisingly, they are the same people pushing bills like UCITA which require nominal warranties on software as they are betting they can have Free Software effectively outlawed. In exchange for their granting of nominal warranties to consumers, they demand draconian rights such as legal remote removal of so-called "pirated" software. If this sort of government-corporate collusion is allowed to pass, then I am moving myself and my tax dollars elsewhere.
9. Lastly, many Free Software projects are collaborations involving individuals in many different countries. It would seem the height of folly to require them to follow stringent legal requirements, such as those detailed in UCITA, for distributing their products in the USA. As foreign coders cannot be expected to understand the vagaries of English legalese, they would have to hire a US-based attorney to review the warranty on their product. One can imagine the likelihood of that given the cost of such attorneys. It would be a shame to lose foreign contributors as, unlike in many physical object trade disputes which affect trade deficits and surpluses, software cum source code increases the intellectual wealth in all countries involved.
10. I would like to thank the FTC for allowing citizens to comment in such a convenient format as email. Hopefully, all such government agencies will one day be able to gather direct feedback from the citizenry so easily.
--
Stephen Waters
Austin, TX
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My preferred warranty:
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
What about undefined constructs in the language?
Then it is guaranteed to operate in an undefined manner. How simple is that?
proof, n. A demonstration that a conclusion is implied by certain premises and axioms.
Slashdotters really must learn that, to make things better, they should take time out of their day and put pen to paper and write to their elected officials.
Hell, it doesn't even take a full-blown letter campaign, just the thoughts of a few concerned citizens. You must realize that for every letter you write, you counter the efforts of a corporation plus some (you are not only a concerned individual, you are also a constituant and a voter).
If the corp. decides to bring out the big gun lobbyists and big $$$ contributions, that weakens you but you should use the opporitunity to bring in your friends and associates and fight harder.
Have you ever put your name on one of those internet petitions? I have. But in reality, if I was a Senator or the cabinet I would put as much weight on two or three written letters from my constituents as I would on a net petition, even if it was signed by 500 or 5000 and printed out on HP laser jets and sent FedEx. The letter really has that much more weight.
Its time for the bitching and rhetoric on these /. boards to stop. Specifically, the "Why don't things change?" bit. The energy can be much better spent influencing the people that matter, rather than convincing our own brethren of the obvious truths and blatant injustices we see more and more often in the /. news these days.
So, write the FCC, write to your elected legislators to change the laws, and have a nice day.
1. Be polite. The last thing we need is for representatives' mailboxes to overflow with hundreds of YOU SUCK FOR VOTING FOR UCITA!!! messages.
2. Speling counts (pun intended). We want to present the impression of responsible, concerned people who are worried about how this law may affect them. a bunch of peoplz riting like this wil get no responses. We don't want to make the impression that the opposition consists only of crackers and 14-year-olds.
3. Almost without a doubt, someone will post an example letter showing the correct way of showing your opposition. Use this, but don't copy it word for word. Hundreds of identical letters will inevitably be dismissed as a campaign. Be unique and your voice will count.
4. State the facts. Using plain english, explain why this bill is bad. No technical terms, no hyperbole, and no distortion of the facts. We have enough evidence that there is no need to make something up, and the negative results from that could be devastating.
5. And again, be polite. I've said it once before but I'm saying it again, in order to get it thoroughly drilled into people's heads. I cannot stress this enough.
Friends don't let friends misuse the subjunctive.