7 November 2000 The Honorable Joe T. May Dear Delegate May: I am writing on behalf of the Institute of Electrical and Electronics Engineers – United States of America (IEEE-USA) to convey our endorsement of two amendments submitted by Mr. Mark Pruett of Virginia Linux Systems to the Advisory Committee to exempt free software from the definition of mass-market transactions under UCITA and also to discourage inappropriate restrictions on the lawful practice of reverse engineering of software for purposes of interoperability. The drafters of the model UCITA law did not take into account the growing open source movement in software development or other free software distribution methods. Exempting free software from UCITA’s definition of mass-market transactions is the simplest way to handle this significant body of software; otherwise UCITA risks imposing undue and anti-competitive restrictions on competition in the software industry. Similarly, IEEE-USA believes that the lawful uses of reverse engineering of software, such as for interoperability, is a critical software engineering business practice, which also serves to enhance the public interest by promoting competition, encouraging technological improvements and by advancing scientific learning. The Institute of Electrical and Electronics Engineers, Inc. is a non-profit, technical professional association with more than 350,000 individual members in 150 countries. IEEE-USA supports the careers and public-policy interests of the nearly 240,000 electrical, electronics, computer and software engineers who are U.S. members of the IEEE, including the 8,900 IEEE members who live and work in Virginia. Thank you for your consideration of our views. Sincerely, Merrill W. Buckley, Jr. [Proposed Amendments Submitted by Mark Pruett]Amendment 1: Exemption of Free Software from Mass-Market Transaction ADD 59.1-501.2 (a)(32), and renumber remaining definitions.
AMEND 59.1-501.2 "Definitions", subsection (a), paragraph (44) "Mass-market transaction":
Statutory Text with the Amendment § 59.1-501.2. Definitions. (a) As used in this chapter, (32) "Free software license" means a license which permits the licensee of a computer program to copy, distribute, or modify the program or derived products, with no payment of license fees. . . . (44) "Mass-market transaction" means a transaction, which is not for a free software license, that is: (A) a consumer contract; or (B) any other transaction with an end-user licensee if:
Rationale: Free software licenses are fundamentally different from a mass-market computer information license. In particular, no license fee is required, and hence revenue flow from the licensees to the licensors is nonexistent. If responsibility for warranties and support are misdirected to the licensors of free software (as would happen with the current inclusion of free software as mass-market computer information), two very undesirable effects would accrue:
There is an existing large body of free software available to the public, and it cannot practically or legally be withdrawn and re-licensed so as to adapt to UCITA's licensing framework for mass-market software (e.g. disclaiming implied warranty). Furthermore, it is a practical impossibility in the near term for the tens of thousands of free software authors to solicit legal advice in order to amend their existing license terms. Hence the default terms under which free software is placed by UCITA are of very grave importance and must differ from traditional proprietary mass-market software. For example, the Apache web server is available at no charge on the internet under a free software license. Apache powers over 60 percent of all servers on the web (according to a Netcraft survey of October 2000). This computer program has been the engine behind much of the innovation on the Web in the past five years. Apache is maintained by the Apache Software Foundation, a volunteer-based, not-for-profit organization. Anyone worldwide can contribute to the project, and anyone can use, redistribute, and inspect the computer program. Similarly, many universities maintain computer programming projects that fall under a free software license. Students, faculty, and volunteer programmers work on these projects, extending computer science research and spurring innovation. These computer programs are freely available and freely re-distributable. In most cases, the licensor charges no license fee. Developers of Free Software should not be liable for a program they provide freely, and which can be inspected and modified by the licensee. Amendment 2: Reverse Engineering ADD new subsection (d) to § 59.1-502.9 (e) To the extent that a term in a mass-market license prohibits or restricts reverse engineering of a computer program for purposes of interoperability or other analysis of computer software, such term is unenforceable, unless these activities by the licensee are prohibited by other law or are prohibited by other applicable license terms which preclude the creation or distribution of a derived or copied product. Rationale: A term that precludes the user from reverse engineering a program could effectively prevent the licensee from using the program with their existing computer systems. For example, Samba is a Free Software computer program that lets Microsoft Windows operating systems interoperate with Unix operating systems. The Samba program, running on a Unix computer, communicates with a Microsoft Windows computer by emulating a Microsoft network protocol, in effect "speaking the same language" as the Windows computer. The Samba software makes it possible for computer owners to use a variety of operating systems together. This provides more efficient use of computer resources, and allows businesses to reduce their operating costs. A license restriction preventing reverse engineering hinders the creation and use of computer programs that let businesses interoperate their existing computers in a cost-effective manner. Additionally, without an amendment allowing reverse engineering of computer programs, legitimate development of interoperable products will have to occur outside of Virginia. This will force software companies who produce such software to develop it elsewhere, or to cease development altogether. | Top of Page | UCITA Network | Policy Log | Public Policy Forum | IEEE-USA | Last Update: 13 Nov. 2000 Copyright © 2000, The
Institute of Electrical and Electronics Engineers, Inc. |
