July 24, 2002

Red Hat asks Uniform State Law Commission to reverse UCITA legislation

TO: NCCUSL Commissioners
FROM: Carol Kunze
RE: Discussion of UCITA on July 29, 2002 at NCCUSL Annual Conference

* * * *

I write to you on behalf of Red Hat, Inc., a software services company
which also distributes the open source operating system Linux.We are making what we appreciate is an extraordinary request - THAT YOU
REVERSE THE 1999 DECISION TO ADOPT UCITA.

UCITA was written for the proprietary (commercial, for profit) software
industry. It does not reflect the practices of the open source
community, nor the expectations of parties to an open source
transaction.

Open source software is primarily written by communities of users, often

through non-profit organizations. Open source software can be freely
copied, freely modified and the source code is freely available to
enable users to do so. All copies can be freely redistributed.

This means that everyone is free to service, adapt, fix bugs and write
compatible software. The developer has no monopoly on servicing the
product.

Because open source software can be freely distributed, the distributor
may have no contractual relationship, or indeed even know many of the
authors of the code which it is distributing.

UCITA is written for transactions involving a single license, where an
agreement is concluded, where the distributor has a direct or indirect
contractual relationship with the developer, and where there are profits

to support warranties. Many open source software transactions do not
conform to this model in any respect.

The open source community has created its own set of practices and norms

that differ widely from the commercial rules that UCITA adopts as the
standard. UCITA does not reflect the open source community's
development model, its distribution model, its license terms, nor its
general expectations.

UCITA may bring certainty to software licensing law, but only for
proprietary software distributors.

NCCUSL should not adopt a law with default terms which, if applied to an

open source transaction, would convert it into a proprietary transaction

against the will of the user and the distributor.

NCCUSL should not adopt a law which threatens the existence of an
important and growing alternative in the software market.

By adopting proprietary practices as the norm, UCITA attempts to force
open source to conform to a model based on profits and warranties.

This

would destroy open source.

It is not for NCCUSL to decide which form of software development and
distribution to legally validate. NCCUSL SHOULD EITHER LEGISLATE A
SOFTWARE LAW WHICH REFLECTS BOTH PROPRIETARY AND OPEN SOURCE PRACTICES,
OR IT SHOULD REFRAIN FROM LEGISLATING.

Red Hat respectfully requests that you vote to reverse the previous
adoption of UCITA.

Sincerely,
Carol A. Kunze, Esq.
901 Cape Cod Ct
Napa, CA 94558
707.966.5211
fax 707.371.1807
ckunze@ix.netcom.com

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