Doug Masson on MS's Gomulkiewicz article regarding Copyleft and UCC2b

[James Love <love@cptech.org>]

Two interesting notes regarding Microsoft, UCC2b and copyleft.

  jamie

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Subject: Gomulkiewicz on Copyleft
   Date: Mon, 10 May 1999 14:49:08 -0400
  From: Doug Masson <dmasson@iquest.net>
    To: Multiple recipients of list AM-INFO <am-info@essential.org>

Interesting: The Spring 1999 edition of the Houston Law Review has an
article entitled, "How Copyleft uses License Rights to Succeed in the
Open Source Software Revolution and the Implications for Article 2B", 36
Houston L. Rev. 179 (1999). The author is Robert W. Gomulkiewicz who is
a senior corporate attorney for Microsoft and chairman of the UCC 2B
Working Group of the Business Software Alliance. This should be
interesting. I'll let you know if it contains anything of note.
---Doug

Subject: Gomulkiewicz on Copyleft
   Date: Mon, 10 May 1999 14:50:29 -0400
  From: Doug Masson <dmasson@iquest.net>
    To: Multiple recipients of list AM-INFO <am-info@essential.org>


Alright, I read the article. (In part I of our story, I described how MS
senior corporate attorney and chairman of the UCC 2B working group of
the Business Software Alliance, Robert W. Gomulkiewicz wrote "How
Copyleft Uses License Rights to Succeed in the Open Source Software
Revolution and the Implications for Article 2B", 36 Houston L. Rev. 121
(1999).).

The Article starts with an unremarkable (to me) description of the
nature and history of open source software and its use of licensing to
achieve its goals. There are a couple of subtle knocks at the
(un)reliability of open source software, but by no means does he dwell
on it. He then makes essentially 3 points about the open software
movement and its reliance on licensing:
1) Mass-market, take-it-or-leave-it licenses are necessary for the open
source movement.

2) Licenses must be allowed to allocate risks among the parties for open
source software to succeed---this is so because folks won't write open
source software unless they can disclaim certain warranties and, more
importantly, stay out of court.

3) Because open source licenses can't take into account every
eventuality, gap-filler, default rules are necessary.

These points might be valid. However, Mr. Gomulkiewicz then makes his
leap. He suggests that because of those three issues, Article 2B is
necessary. However, he doesn't really explain why the provisions of
Article 2B are superior to other possible provisions to protect open
source software. Also missing is an explanation of why, if indeed
Article 2B is necessary to protect open source licenses, the application
of Article 2B shouldn't be limited to open source licenses. The notable
absence of discussion on these matters could've been due to
considerations of space, but (imho) the article was pretty short.

To summarize: (1) open source software relies on licensing; (2) the
proposed Article 2B could conceivably provide a framework under which
open source licenses could operate; and (3) because of items (1) and
(2), the best way to protect the open source software movement is to
pass a set of laws that overwhelmingly stack the decks in favor of
proprietary software companies. The End.

---Doug




-- 
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org