Re:But WHY is UCITA contrary to Open Source? (Score 1)

The basic problem is that UCITA is based on the proprietary model in terms of the practices it validates. And so to some extent open source/free software (OS/F) would have to conform to those practices.

One brief example. UCITA implies a warranty that the software does not infringe someone else's IP rights. So if you transfer software (for say, the price of the medium) you make this warranty.

This makes sense for proprietary software where development is controlled, there is a contractual relationship (direct or indirect) between the distributor and the developer which can address allocation of this risk, and there is profit to cover the risk.

But distributors of OS/F, particularly of Linux with its hundreds of software modules, are not in a position to know if the code infringes anyone's copyright or not. Given the circumstances, which also include the fact that there are no license fees to generate income to cover the risk, its not reasonable for the law to imply this warranty on OS/F.

You can disclaim the warranty, but you have to get the user to agree. But OS/F does not get an up front (in connection with initial use of the software) agreement with the user. So it would have to start doing this.

And you would need to clarify in the agreement that the transfer is a sale and not a license. Because if it is a license and you don't address certain issues in the license agreement, the UCITA license default rules will apply, and they were written for proprietary software. The GPL would not be a "license" under UCITA because it is not a contract.

Plus, this type of warranty needs to be disclaimed with specific language (provided in UCITA). A general "there are no warranties" will not do.

And when UCITA gets to some (not all) state legislatures for adoption, it will be modified to disallow the disclaimer of warranties, particularly for consumers. Then there would be mandatory warranties on OS/F in these states.

The problem is that the impact of UCITA on OS/F was simply not considered. Of course, the real problem is warranties. When there are no license fees, and the product can be infinitely copied, warranties make no sense. This is where the real risk lies. Warranty exemption language similar to the exemption Maryland provided for open source was proposed, but got so watered down that it provides little benefit.

Carol