|From: Jason Rennie
Date: Wed, Jun 28, 2000 8:29 AM
Subject: High-Tech Warranty Project -- Comment, P994413
1. I am a Computer Science PhD student at the Massachusetts Institute of Technology. I don't claim to be a lawyer or have any significant grasp on law in this country, but I do know that requiring a warranty on the release/distribution of any software product would significantly hinder a section of creative development in the software world.
2. While most software that is used in the commercial business world is developed by profit-seeking companies, there are many people who use software that is produced by a completely different entity, the general collection of students and software professionals who enjoy programming and pride themselves in the software they create and distribute. Software created in this manner includes the Linux operating system, the Apache web server, the GNU C/C++ compiler and thousands of other programs and utilities. This software is often released under a license such as the GNU General Public License (GNU GPL), a license that (in its most primitive form) legally allows the user to modify and redistribute such software as long as the redistributor makes the modified source code available at costs not exceeding those required for the transmission of the information (via whatever means). Most who write original software and release it under the GNU GPL do not sell their software, instead, they might make it freely available from a web site. Anyone who wishes to obtain the software may do so given knowledge of the web site and reasonable internet access.
3. Software distribution under the GNU GPL allows for the free exchange of work and ideas in the software community. When a for-profit company makes software, they do so behind closed doors. When the product is released, it is usually distributed in the form of a binary executable, a binary encoding of the source code that is only readable by machines of a certain type. When a person releases GNU GPL code, it is made eternally free.
Anyone who obtains a copy of the software must be given access to the source code; subsequently, anyone who has a copy of the source code may redistribute the source code. Hence, even if the original author no longer maintains a piece of software, others are welcome to maintain and continue distributing the software.
4. Since GNU GPL software may be freely distributed, it allows for the free exchange of ideas. If Adam makes software "foo" and releases it under the GNU GPL, Beth may find "foo" and decide to make improvements to it for her own personal use. If "foo" were proprietary software, Beth probably wouldn't have had access to the source code and even if she did, her changes probably wouldn't have been incorporated into the distribution. However, since "foo" was released under the GNU GPL, Beth does have access to the source code and is able to make her changes.
Furthermore, Beth has two options if she wants to add her changes to the distribution. If Adam agrees, she may add her changes to the original distribution. However, if Adam does not like Beth's changes, or if Adam no longer maintains "foo," Beth may make her own distribution of "foo".
Hence, as long as Beth wishes her ideas and work to be available to others, the GNU GPL ensures that they can be made available. In fact, one benefit of the GNU GPL is that it promotes competition in the world of software. The GNU GPL allows software to split into different threads or branches. As has been seen in various GNU GPL licensed projects, such splits generally lead to great improvements in the underlying software as they allow pinnacle decisions about the software to be made over a long period of time, thus allowing the best decision to eventually rise to the surface.
5. One difficulty associated with a warranty is that it costs money to distribute something with a warranty. If, in order to distribute "foo," Adam would have had to provide a warranty of some sort, Adam is likely to have never distributed "foo" because his intention was not to make a profit from "foo," but rather to make available his ideas and work to those who can appreciate or make use of them. As with "foo," many other software projects would not have been feasible had a warranty been required with any distributed product. As it stands, the GNU GPL disclaims the notion of an implied warranty of any sort.
6. If the Federal Trade Commission deems it necessary that software generally require a license, I would ask that it make a special exemption for software that are distributed in an open and free manner that encourages the exchange of ideas. The Open Source Initiative (http://www.opensource.org) has a set of guidelines (http://www.opensource.org/osd.html) for licenses accompanying software that is distributed in this manner. Without such an exception, a warranty required on all distributed software could seriously stunt the development of new ideas in the software community.
7. The GNU GPL may be found at http://www.gnu.org/copyleft/gpl.html
Thank you for your time,
Jason D Rennie