Subject: Re: Microsoft's near-OSD-compliant shared source license
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Wed, 2 Jul 2003 03:07:53 +0100
Wed, 2 Jul 2003 03:07:53 +0100
on Mon, Jun 30, 2003 at 11:32:57PM -0700, Rick Moen (rick@linuxmafia.com) wrote:
> Quoting Brian Behlendorf (brian@collab.net):
> 
> > http://www.asp.net/samplessourcelicense/Default.aspx?tabindex=0&tabid=1
> > 
> > Any thoughts?
> >
> > This is perhaps the one segment that makes it not OSD-compliant,
> > violating OSD #9, but I'm not sure:
> > 
> >   [You agree] [t]hat you are not allowed to combine or distribute the
> >   Software with other software that is licensed under terms that seek to
> >   require that the Software (or any intellectual property in it) be
> >   provided in source code form, licensed to others to allow the creation
> >   or distribution of derivative works, or distributed without charge.
> 
> I notice that the terms "combine with" and "distribute with" are
> undefined -- which tempts one to speculate about the restriction's
> scope: On the face of it, such wording might ban covered software's
> inclusion with "software under terms that seek to require [etc.]"
> physically within (1) a CD-ROM, (2) a knapsack, (3) a FedEx delivery
> truck, or perhaps even (4) a commercial jet used for airmail.
> 
> That strikes me as waaay over the border of OSD #9, in short.
> 
> But hey, at least they're trying their hand at innovation.  ;->

I'm sharing some of Rick's concerns here.

Matter of fact, I'm having a hard time parsing clause 2.  Is it:

    That you are not allowed to combine or distribute the Software with
    other software that is licensed under terms that:
       - Seek to require that the Software (or any intellectual property
         in it) be provided in source code form.
       - Licensed to others to allow the creation or distribution of
         derivative works.
       - Or distributed without charge.

Or:

    That you are not allowed to combine or distribute the Software with
    other software that is licensed under terms that seek to require
    that: 
       - the Software (or any intellectual property in it) be provided
         in source code form.
       - Licensed to others to allow the creation or distribution of
         derivative works.
       - Or distributed without charge.

Or:

    That you are not allowed to combine or distribute the Software with
    other software that is licensed under terms that seek to require
    that the Software (or any intellectual property in it) be:
       - Provided in source code form.
       - Licensed to others to allow the creation or distribution of
         derivative works.
       - Or distributed without charge.

If the last is the intended meaning (and as written, the license could
be argued many ways), then:

   - The first prohibition doesn't rule against GPL, if one reads the
     GPL as not requiring source disclosure for all distributions.  The
     LGPL might also be allowed.

   - The second prohibition would seem to speak against the GPL.

   - The third is a non-issue, and likely reflects on a desire to
     inculcate FUD or simply a misunderstanding of what FLOSS is about. 
     No FSF Free Software or OSI Open Source license makes a prohibition
     against charging for the act of distribution (the GPL explicitly
     states you may "charge for this service if you wish").


Effectively, then, this is the anti-GPL license -- it's a license which
allows for use and modification, but explicitly prohibits use in
copylefted software.

The question then becomes:  is this discrimination against a group or
field of use?  Or is it along the lines of the incompatibility of the
old-style BSD (and current Apache) license whose advertising clause
conflicts with the GPL?

I'd argue for the former.  While the  effect  of the advertising clause
is similar, it's a mechanical requirement, and not simply a prohibition
against a form of licensing.  The license for Microsoft ASP .NET Source
Projects is inclusive, with the specific exclusion of one class of
licenses.

This is similarly different from the GNU GPL, which is exclusive of
 all  licenses which don't confirm to it, without specifically calling
out any terms for exclusion.  Instead, the exclusion is based on the
properties specific to the GPL,  not  a property of another license
which is specifically called out.

If it came for a vote on this license, I would argue very strongly that
it does  not  meet the OSD.

Peace.

-- 
Karsten M. Self <kmself@ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    The truth behind the H-1B IT indentured servant scam:
    http://heather.cs.ucdavis.edu/itaa.real.html


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