Linux Foundation joins Microsoft in opposing software defect warranties

Linux's siding with Microsoft on the issue of software warranties now puts that organization at odds with lawmakers in the European Union. Two weeks ago, EU Commissioners Meglena Kuneva and Viviane Reding jointly proposed what they called a "Digital Agenda for Consumer Rights Tomorrow" -- an eight-point plan for reform of consumer redress rights. Point #4 on that agenda was a cross-continent lifting of the exemption of software's exclusivity treatment in consumer warranties, explained in the agenda statement as: "Extending the principles of consumer protection rules to cover licensing agreements of products like software downloaded for virus protection, games, or other licensed content. Licensing should guarantee consumers the same basic rights as when they purchase a good: the right to get a product that works with fair commercial conditions."

Lifting software's exclusivity in Europe could have the same effect as extending commercial protections to software exclusively in America -- effectively preventing manufacturers from being able to "flexibly" disclaim their warranties of merchantability. Such warranties, the Linux Foundation argued in its joint letter, would be incompatible with the provisions of open source licensing.

When news of the Agenda was first issued from Comm. Kuneva's office, the press took it to mean that games -- explicitly mentioned in the Agenda -- would have to not only be non-buggy, but perhaps just good, or else consumers could hold developers liable. That's a bit of an exaggeration, although Kuneva has been on record as supporting consumers' rights to take action when software they purchase does not work as advertised.

In a statement over the weekend posted to his company's legal blog, Microsoft Deputy General Counsel Horatio Gutierrez -- co-author of the letter to the ALI -- sounded a note of hope that his company's cooperation with Linux on this matter could be a sign of future partnerships to come. "Our industry is diverse and sometimes contentious, but if nothing else unites us it is that we all believe in the power of software," Gutierrez wrote. "I hope that this represents just one of many opportunities to collaborate with the Linux Foundation and others going forward. We have a lot more we can do together."

And in his own blog post this morning, Linux Foundation Executive Director Jim Zemlin wrote, "The principles outlined by the ALI interfere with the natural operation of open source licenses and commercial licenses as well by creating implied warranties that could result in a tremendous amount of unnecessary litigation, which would undermine the sharing of technology...Today we are finding common ground with Microsoft and we look forward to potential collaboration in the future as well as to competing in the market and keeping each other honest."