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From EcoTort Theatre <ecot...@gn.apc.org>
Subject Re: FW: ALI Principles of the Law of Software Contracts
Date Sat, 20 Feb 2010 02:06:32 GMT

On 2/19/2010 6:23 PM, Lawrence Xxxxx wrote:
> I sent this to the ASF Board, but there's no reason whatsoever that it 
> shouldn't get more widespread attention here at legal-discuss. Thanks 
> to Craig Russell for suggesting that I send this more widely. /Xxxxx
EcoTort wrote:
I have taken it upon myself to send this out to my mailing list, as I 
strongly believe in Open Source as a general philosophy for Life, The 
Universe, and Everything.
For our collective Planetary Health and well-being we urgently need to 
embrace the conducive practice of "power WITH eachother", rather than 
abusive "power OVER eachother" . . .

> Please accept my signature below, as Makenzie's Friend to your cause:
*Request to the American Law Institute Regarding Public Dissemination of 
the Principles of the Law of Software Contracts*

We, the undersigned attorneys, represent clients involved in 
transactions of all kinds relating to software.

We believe that clarity and certainty in the law reduces transaction 
costs, promotes efficient resolution of disputes and supports job growth 
and economic development. We believe, conversely, that lack of clarity 
or certainty increases the cost of transactions, results in protracted 
litigation and saps energy from innovation and job creation. In 
particular, unsettling well-established expectations regarding standard 
commercial practices in software licensing in the United States would 
increase the likelihood and expense of litigation and decrease the 
competitiveness of the U.S. software industry.

The Principles of the Law of Software Contracts diverge from well 
established law (both statutory and decisions) as well as commercial 
practices on a number of issues. We strongly believe that the unfair 
surprise and uncertainty that would result from the application of the 
Principles by any court that elects to observe them would be disruptive 
to business both for licensors and licensees of software and decrease 
confidence and respect for U.S. law in commercial transaction. The risk 
that each court might diverge from mainstream law and practice to adopt 
the Principles would result in higher business and litigation expenses 
for U.S.-based software developers that would be passed in part to U.S. 
businesses and consumers through higher license fees. This risk also 
would in part be internalized by software developers, particularly small 
businesses without the leverage to pass along the increased costs 
through higher license fees, as an expense that would need to be offset 
in other areas, such as R&D spending needed to keep pace with 
innovation. For foreign corporations considering operations in the U.S. 
(as well as those operating in the U.S.), the imposition of new laws 
without review by legislatures will serve to confirm beliefs about the 
increased costs of doing business in the U.S. because of the uncertainty 
of legal principles and litigation risks. This approach will provide an 
incentive to avoid doing business in the United States. Foreign 
corporations considering enterprise-wide licenses of software from U.S. 
companies will also be troubled by the uncertainty of contractual 
license terms.

These concerns are made more serious by the lack of awareness of the 
Principles by both licensors and licensees in the software industry. In 
our experience virtually all in-house attorneys and outside counsel who 
practice technology law on behalf of licensors and licensees, whom we 
have contacted have no knowledge of their content or existence. The ALI 
practice of making copies of the Principles available only to those who 
visit the ALI website and pay a per copy fee prevents effective 
dissemination of information or discussion regarding the Principles. 
This approach poses particular problems for discussion of the Principles 
on the Internet which is the most common approach for most legal 
matters. We believe that it is also inconsistent with the Principles' 
acknowledgement of the importance and value of transparency and 
accessibility to information in their requirement that licensing 
information be made "reasonably accessible electronically." (ยง2.02 
Standard-Form Transfer of Generally Available Software; Enforcement of 
the Standard Form.). We also believe that ALI's position prohibiting 
copying of sections of the Principles for discussion and comment is not 
consistent with this statement, or with the ALI's goals and fair use 
under copyright law.

We applaud the ALI for undertaking this daunting task of articulating 
the law underlying this ever changing industry. We appreciate the 
significant amount of work that went into the resulting document. But we 
believe that without an open dialog on its contents the Principles will 
damage the U.S. software industry and will be of limited use in 
effecting the orderly adoption of the changes in industry practices that 
its drafters would like to see.

We therefore request that the ALI take affirmative steps to encourage 
public comment and discussion by posting, or by granting the right to a 
third parties to post, the Principles of the Law of Software Contracts 
on a web site that is reasonably likely to facilitate balanced discourse 
and broad dissemination of its contents and to permit third parties to 
copy selections of the Principles to encourage dialog about them.


EcoTort Theatre Company. UK.




Nicholas St Clare. (Director)





> *From:* Lawrence Xxxxx
> *Sent:* Friday, February 19, 2010 9:58 AM
> *To: *Apache Software Foundation
> *Subject:* ALI Principles of the Law of Software Contracts
> ASF Board:
> I have already signed the attached petition on behalf of myself and my 
> law firm. I request your permission to sign it on behalf of the Apache 
> Software Foundation.
> The American Law Institute's "Principles of the Law of Software 
> Contracts" is a disaster for open source. It is a model law being 
> proposed by an influential group of lawyers without sufficient care 
> for our licenses or our needs.
> I'd prove it to you except the ALI document itself is being sold at 
> $85/copy under a license that doesn't permit my copying it for you. 
> What nerve they have!
> I'm cooperating with attorneys at Linux Foundation, OSI,  Mozilla and 
> Canonical to petition ALI to release their document for free for 
> review by the constituencies that care about it. That's what this 
> petition is for. It isn't itself an opposition to the Principles; that 
> will come next....
> /Xxxxx
> P.S. If any of you wish to forward this petition to the attorneys for 
> your own companies, I wouldn't object.

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