Software Customer Bill of Rights

[This article was contributed by Joe 'Zonker' Brockmeier]

In the last week or so, Cem Kaner's Software Customer Bill of Rights has been making the rounds of the "blogosphere" and getting quite a bit of attention. Essentially, Kaner proposes ten basic rights that should be enjoyed by any user of commericial software. As End User License Agreements (EULAs) have become increasingly onerous over the last few years, Kaner's bill of rights has struck a chord with users.

For the most part, the rights proposed by Kaner are already enjoyed by users of open source software. They already have the right to transfer free software to other users. They don't need to reverse engineer the software to check for security holes or to fix bugs and security glitches -- they already have the source code. (Nothing in any open source license would prevent a user from choosing to do it the hard way, however.) Kaner proposes that users should have the "right to see and approve all transfers of information from her computer." While "spyware" is a constant danger posed by proprietary software, with access to source code, users can make sure that a program isn't secretly sending data off of their computer to another machine.

However, there are a few rights that would benefit users of open source software. Firstly, the unfettered right to reverse-engineer proprietary software would be a major boon to the open source software community. As Kaner points out, courts have been willing to enforce clauses against reverse-engineering in software licenses. This poses a problem for open source developers looking to achieve interoperability with commercial software, operate embedded devices with open source software or simply a way to access data saved in a proprietary format.

Another right that Kaner proposes is "mass-market software should be transferrable." As mentioned previously, users already enjoy the right to transfer software that is licensed under a FOSS license. However, most users of open source software still end up dealing with proprietary software. How many open source users have purchased a laptop or desktop computer with software preinstalled that will never be use by the purchaser? The cost of a Windows XP license is built into the price of a brand-new machine. The user should have the right to transfer that software to another user who will make use of the software, if we so choose.

The first item on Kaner's list, however, is "let the customer see the contract before the sale." This is particularly timely in light of Dell's hidden license policy. Even some of the Linux vendors have started using the "clickthrough" mechanism, with some of the Linux installers requiring the user to agree to the terms of the open source licenses, without allowing the user to read them first. This is probably done because of the number of licenses involved -- most distributions include software under the GNU General Public License (GPL), Lesser GPL, Artistic License, Apache License, Mozilla License, BSD License and so on.

One potentially dangerous clause in Kaner's bill of rights is number ten, "When software is embedded in a product, the law governing the product should govern the software." Generally, this would be a good thing. A hardware manufacturer should not be able to use licensing terms to forbid the transfer of a router or network appliance by forbidding the transfer of embedded software. Car manufacturers shouldn't be able to exclude embedded software from warranties.

However, one wonders if this might make open source developers liable in some way if their software is "embedded" in a product. Most, if not all, FOSS licenses disclaim any warranty because the software is being given away. What happens, however, if a court decides that embedded software qualifies as "goods" and that developers can be held liable for defects -- even if they have not charged for the software in the first place? This may seem like a stretch, but we do live in a very litigious society.

Kaner's proposed rights would be a dramatic improvement for users of proprietary software, but they leave out many rights that FOSS users take for granted. For example, users of FOSS software expect to have access to source code. They also expect to be able to modify the software, to add or remove features that they deem necessary or desirable, and to be able to distribute the changes.

Despite the fact that the Software Customer Bill of Rights doesn't quite match the average FOSS license in terms of customer rights, it would be good to see it become reality. It's time to start reversing the current legislative trends that have given far too much power, and too little accountability, to vendors of proprietary software.