Subject: RE: License compatibility of MS-PL and MS-CL (Was: (RE: Groklaw's OSI item (was: When will CPAL actually be _used_?))
From: "Thatcher, Jim E. (Woodcock Washburn)" <jthatcher@woodcock.com>
Date: Mon, 27 Aug 2007 18:57:52 -0400
Mon, 27 Aug 2007 18:57:52 -0400
The phrase "the software" as used in the Ms-PL and Ms-CL is a shortened
form of "the accompanying software" and means the software that was
provided to you under that license.  This includes both the source code
form and compiled or object code form.

As has been noted on this thread, Microsoft uses other source code
licenses as well.  Although some in the open source community are
familiar with these other licenses, many are not.  It is Microsoft's
intent that the Ms-PL and Ms-CL submissions to OSI be evaluated on their
own terms, not based on interpretations or opinions relating to other
licenses.

Regards,


Jim Thatcher
Of Counsel
Woodcock Washburn LLP 
999 Third Ave, Suite 3600
Seattle, WA  98104
206.332.1117 
Fax: 206.624.7317 
Mobile: 425-445-9535
Email: jthatcher@woodcock.com
www.woodcock.com


-----Original Message-----
From: zbowling@gmail.com [mailto:zbowling@gmail.com] On Behalf Of Zac
Bowling
Sent: Saturday, August 25, 2007 10:30 AM
To: Thatcher, Jim E. (Woodcock Washburn)
Cc: Donovan Hawkins; License Discuss
Subject: Re: License compatibility of MS-PL and MS-CL (Was: (RE:
Groklaw's OSI item (was: When will CPAL actually be  used ?))


Hi Jim,

I'm know as one of main contributors to the Mono Project that using code
licenced under the Ms-PL and possibly Ms-CL is likely.

So last week, I had a paralegal at work that handles the licencing
issues on our projects there and my lawyer (although he is not a
specialist in IP issues) go over it and from all of our interpretations
of the licence we all came to the same conclusion which is directly
opposite to what you say in Q2 and Q3 here.

The text about "any portion of the software" is unclear. Does it mean
any portion of the combined work or any portion of the original work?
Saying "any portion of the software" led us to believe that it was the
combined work. The text about releasing under a compatible licence if
you release in binary form only help add the confusion.

I blogged the issues of using Ms-PL on my blog about a week ago based
purely on our combined interpretation.
http://zbowling.com/blog/2007/08/14/microsoft-to-make-ms-pl-and-ms-cl-os
i-compliant/

Would it be possible to clarify this in the text of the licence?

Zac Bowling
http://zbowling.com/
http://mono-project.com/

On 8/24/07, Thatcher, Jim E. (Woodcock Washburn)
<jthatcher@woodcock.com> wrote:
>
>
>
>
> As others have noted, Microsoft took a stab at addressing
> compatibility of Ms-PL with other licenses in the text Mr. Hawkins
> included below from Jon Rosenberg's initial submission of the license.
> However, there have been specific scenarios posed in this discussion
> that could benefit from additional clarifications. I'll try to provide
> that clarity in the FAQ below.
>
> Q1. Can I combine source code licensed under Ms-PL with non-Ms-PL
> source code?
>
> A. Yes. The Ms-PL-licensed source code will need to remain licensed
> under the Ms-PL, but the other source code can be under any license.
>
> Q2. Do I have to use the Ms-PL for changes I make to Ms-PL source
> code?
>
> A. The source code that constitutes "any portion of the software"
> needs to remain under the Ms-PL, but your changes can be under any
> license. If you really wanted to track changes within a source code
> file at the "lines of code" or "bytes" level the Ms-PL terms would not
> prevent you from making your changes to the Ms-PL-licensed source code
> available under some other license.
>
> Q3. Can I distribute source code under both the Ms-PL and another OSS
> license?
>
> A. If you are the copyright holder of the source code you can license
> it under any terms you choose, including choosing to license it under
> more than one license. You can license your source code under both the
> Ms-PL and any other license you choose. However, if you are not the
> copyright holder (and you don't have permission from the copyright
> holder) you may not offer source code that was licensed to you under
> the Ms-PL to others under another license.
>
> Q4. Can I use source code licensed under another OSS license in a
> project that I release under the Ms-PL?
>
> A. That depends on the terms of the other OSS license under which that
> source code was licensed to you. If it allows you to redistribute the
> source code under any license terms you choose, then you can choose to
> apply the Ms-PL to that source code in addition to your own source
> code when you release the project.
>
> Q5. Can I use source code licensed under the Ms-PL in a project that I
> release under another OSS license?
>
> A. That also depends on the terms of that other license. If it allows
> portions of the source code to be provided under a different license,
> then you can use the Ms-PL-licensed source code and redistribute it
> under the Ms-PL, and use the other OSS license for the source code you
> write.
>
> Q6. What about the GPL? Can I use Ms-PL-licensed code in a GPL
> project?
>
> A. You should consult your own attorney to answer that question for
> you. I'm happy to explain what I and Microsoft understand the Ms-PL to
> mean, but you shouldn't rely on my interpretation of other licenses
> without validating that interpretation with your own attorney. The way
> I read the GPL you may be able to use Ms-PL-licensed code in
> conjunction with GPL-licensed code as long as the Ms-PL-licensed code
> (1) is contained in "identifiable sections ... not derived from the
> [GPL-licensed] Program", (2) "can be reasonably considered independent
> and separate works in themselves" and (3), " you distribute them as
> separate works".
>
> Q7. Then this really isn't a "permissive" license, is it?
>
> A. It's clear from this discussion that the term "permissive" in this
> context has a specific meaning to many. This is not really a legal
> issue, but the business folks at Microsoft have heard this feedback,
> and will continue to listen to the community to understand the issues
> that matter most to developers. Microsoft will carefully consider the
> concerns that have been raised regarding the title of the Ms-PL. Best
> regards,
>
>
>
>
> Jim Thatcher
> Of Counsel
> Woodcock Washburn LLP
> 999 Third Ave, Suite 3600
> Seattle, WA  98104
> 206.332.1117
> Fax: 206.624.7317
> Mobile: 425-445-9535
> Email: jthatcher@woodcock.com
> www.woodcock.com
>
>
> -----Original Message-----
> From: Donovan Hawkins [mailto:hawkins@cephira.com]
> Sent: Thursday, August 23, 2007 5:48 PM
> To: License Discuss
> Subject: Re: License compatibility of MS-PL and MS-CL (Was: (RE:
> Groklaw's OSI item (was: When will CPAL actually be  used ?))
>
>
> On Thu, 23 Aug 2007, Matthew Flaschen wrote:
>
> > John Cowan wrote:
> >
> >> I sincerely hope that these reassurances will dispose of all bogus
> >> incompatible-with-everything claims, though I know this list far
> >> too well to suppose that we will actually hear no more of them.
> >
> > He said that binary derivative works containing MS-PL code could be
> > under any license.  I'm concerned about derivative works distributed
> > as source code.
>
> First, let me echo others' thanks to Mr. Thatcher for his analysis of
> the binary distribution case, and hope that he will also be able to
> shed some clarifying light on the source distribution case.
>
>
> Having said that, Jon Rosenberg (the Microsoft rep who posted the
> MS-PL for consideration here) also posted a small FAQ at that time
> which answered the question fairly clearly:
>
> "* Can MS-PL code be redistributed under a different license?: No. 
> The license states that "If you distribute any portion of the software
> in source code form, you may do so only under this license..." This
> restriction is similar to the restriction in the Mozilla Public
> License that states "You may not offer or impose any terms on any
> Source Code version that alters or restricts the applicable version of
> this License or the recipients' rights hereunder."  The MS-PL license
> explicitly prohibits relicensing of the original licensed code under a
> different license, regardless of whether the original code is
> redistributed in whole, in part or as part of a different piece of
> software."
>
>
> In particular:
>
> "...regardless of whether the original code is redistributed...as part
> of a different piece of software."
>
>
> John Cowen points out that derivative works are allowed, but 2(A) says
> they are "Subject to the terms of this license, including the license
> conditions and limitations in section 3." Thus derivative works are
> NOT allowed if they violate section 3, which says "If you distribute
> any portion of the software in source code form, you may do so only
> under this license..." The FAQ answer reinforces the fact that
> distribution of "any portion" includes when part of a derivative work
> (a "different piece of software").
>
>
> Chris Fagan (also of Microsoft) repeated the basic idea of this more
> recently in a post here:
>
> "Our intention in designing the MS-PL is most clearly understood by
> thinking about how a developer may want to make source code they
> developed available to their users (i.e. other developers etc).  A
> design goal of the MS-PL is to allow developers to choose to ensure
> that the specific rights in Section (2) continue to be available to
> downstream developers and users through generations of adoption and
> adaptation."
>
>
> In particular:
>
> "...to ensure that the specific rights in Section (2) continue to be
> available to downstream developers..."
>
> That certainly suggests that you cannot place any additional
> restrictions downstream of MS-PL code. Since you rather obviously
> cannot place FEWER restrictions on it, your only option is to place
> identical restrictions (ie, using the MS-PL).
>
>
> So lines of source code released under only MS-PL by their original
> author can never find themselves under another license by any means
> (though their compiled binary representation can). Attempting to
> create a derivative work that places those lines of code under another
> license (when they are within the derivative work) violates section
> 3(D) and thus violates your license to create said derivative work.
>
>
> Whether there is some clever way to legally keep pure MS-PL code
> distinct from pure BSDL code in a project that generates a single
> executable is perhaps a more complicated legal question (though
> linking is certainly valid). However, requiring a technical
> restriction of keeping the code distinct (often an impossible
> restriction depending on your needs) is probably not what one would
> call "compatible". I pity any developer who would saddle their
> fledgling open-source project with such a burden.
>
>
------------------------------------------------------------------------
---
> Donovan Hawkins, PhD                 "The study of physics will always
be
> Software Engineer                     safer than biology, for while
the
> hawkins@cephira.com                   hazards of physics drop off as
1/r^2,
> http://www.cephira.com                biological ones grow
exponentially."
> ----------------------------------------------------------------------
> -----
>
>
>


--
Zac Bowling
http://www.zacbowling.com
---

I support Mozilla Firefox.
http://www.spreadfirefox.com/?q=affiliates&id=12079&t=1





Message

The phrase "the software" as used in the Ms-PL and Ms-CL is a shortened form of "the accompanying software" and means the software that was provided to you under that license.  This includes both the source code form and compiled or object code form.

As has been noted on this thread, Microsoft uses other source code licenses as well.  Although some in the open source community are familiar with these other licenses, many are not.  It is Microsoft's intent that the Ms-PL and Ms-CL submissions to OSI be evaluated on their own terms, not based on interpretations or opinions relating to other licenses.

Regards,

Jim Thatcher
Of Counsel
Woodcock Washburn LLP

999 Third Ave, Suite 3600
Seattle, WA  98104
206.332.1117
Fax: 206.624.7317
Mobile: 425-445-9535
Email: jthatcher@woodcock.com
www.woodcock.com


-----Original Message-----
From: zbowling@gmail.com [mailto:zbowling@gmail.com] On Behalf Of Zac Bowling
Sent: Saturday, August 25, 2007 10:30 AM
To: Thatcher, Jim E. (Woodcock Washburn)
Cc: Donovan Hawkins; License Discuss
Subject: Re: License compatibility of MS-PL and MS-CL (Was: (RE: Groklaw's OSI item (was: When will CPAL actually be used ?))


Hi Jim,

I'm know as one of main contributors to the Mono Project that using code licenced under the Ms-PL and possibly Ms-CL is likely.

So last week, I had a paralegal at work that handles the licencing issues on our projects there and my lawyer (although he is not a specialist in IP issues) go over it and from all of our interpretations of the licence we all came to the same conclusion which is directly opposite to what you say in Q2 and Q3 here.

The text about "any portion of the software" is unclear. Does it mean any portion of the combined work or any portion of the original work? Saying "any portion of the software" led us to believe that it was the combined work. The text about releasing under a compatible licence if you release in binary form only help add the confusion.

I blogged the issues of using Ms-PL on my blog about a week ago based purely on our combined interpretation. http://zbowling.com/blog/2007/08/14/microsoft-to-make-ms-pl-and-ms-cl-osi-compliant/

Would it be possible to clarify this in the text of the licence?

Zac Bowling
http://zbowling.com/
http://mono-project.com/

On 8/24/07, Thatcher, Jim E. (Woodcock Washburn) <jthatcher@woodcock.com> wrote:
>
>
>
>
> As others have noted, Microsoft took a stab at addressing
> compatibility of Ms-PL with other licenses in the text Mr. Hawkins
> included below from Jon Rosenberg's initial submission of the license.
> However, there have been specific scenarios posed in this discussion
> that could benefit from additional clarifications. I'll try to provide
> that clarity in the FAQ below.
>
> Q1. Can I combine source code licensed under Ms-PL with non-Ms-PL
> source code?
>
> A. Yes. The Ms-PL-licensed source code will need to remain licensed
> under the Ms-PL, but the other source code can be under any license.
>
> Q2. Do I have to use the Ms-PL for changes I make to Ms-PL source
> code?
>
> A. The source code that constitutes "any portion of the software"
> needs to remain under the Ms-PL, but your changes can be under any
> license. If you really wanted to track changes within a source code
> file at the "lines of code" or "bytes" level the Ms-PL terms would not
> prevent you from making your changes to the Ms-PL-licensed source code
> available under some other license.
>
> Q3. Can I distribute source code under both the Ms-PL and another OSS
> license?
>
> A. If you are the copyright holder of the source code you can license
> it under any terms you choose, including choosing to license it under
> more than one license. You can license your source code under both the
> Ms-PL and any other license you choose. However, if you are not the
> copyright holder (and you don't have permission from the copyright
> holder) you may not offer source code that was licensed to you under
> the Ms-PL to others under another license.
>
> Q4. Can I use source code licensed under another OSS license in a
> project that I release under the Ms-PL?
>
> A. That depends on the terms of the other OSS license under which that
> source code was licensed to you. If it allows you to redistribute the
> source code under any license terms you choose, then you can choose to
> apply the Ms-PL to that source code in addition to your own source
> code when you release the project.
>
> Q5. Can I use source code licensed under the Ms-PL in a project that I
> release under another OSS license?
>
> A. That also depends on the terms of that other license. If it allows
> portions of the source code to be provided under a different license,
> then you can use the Ms-PL-licensed source code and redistribute it
> under the Ms-PL, and use the other OSS license for the source code you
> write.
>
> Q6. What about the GPL? Can I use Ms-PL-licensed code in a GPL
> project?
>
> A. You should consult your own attorney to answer that question for
> you. I'm happy to explain what I and Microsoft understand the Ms-PL to
> mean, but you shouldn't rely on my interpretation of other licenses
> without validating that interpretation with your own attorney. The way
> I read the GPL you may be able to use Ms-PL-licensed code in
> conjunction with GPL-licensed code as long as the Ms-PL-licensed code
> (1) is contained in "identifiable sections … not derived from the
> [GPL-licensed] Program", (2) "can be reasonably considered independent
> and separate works in themselves" and (3), " you distribute them as
> separate works".
>
> Q7. Then this really isn't a "permissive" license, is it?
>
> A. It's clear from this discussion that the term "permissive" in this
> context has a specific meaning to many. This is not really a legal
> issue, but the business folks at Microsoft have heard this feedback,
> and will continue to listen to the community to understand the issues
> that matter most to developers. Microsoft will carefully consider the
> concerns that have been raised regarding the title of the Ms-PL. Best
> regards,
>
>
>
>
> Jim Thatcher
> Of Counsel
> Woodcock Washburn LLP
> 999 Third Ave, Suite 3600
> Seattle, WA  98104
> 206.332.1117
> Fax: 206.624.7317
> Mobile: 425-445-9535
> Email: jthatcher@woodcock.com
> www.woodcock.com
>
>
> -----Original Message-----
> From: Donovan Hawkins [mailto:hawkins@cephira.com]
> Sent: Thursday, August 23, 2007 5:48 PM
> To: License Discuss
> Subject: Re: License compatibility of MS-PL and MS-CL (Was: (RE:
> Groklaw's OSI item (was: When will CPAL actually be used ?))
>
>
> On Thu, 23 Aug 2007, Matthew Flaschen wrote:
>
> > John Cowan wrote:
> >
> >> I sincerely hope that these reassurances will dispose of all bogus
> >> incompatible-with-everything claims, though I know this list far
> >> too well to suppose that we will actually hear no more of them.
> >
> > He said that binary derivative works containing MS-PL code could be
> > under any license.  I'm concerned about derivative works distributed
> > as source code.
>
> First, let me echo others' thanks to Mr. Thatcher for his analysis of
> the binary distribution case, and hope that he will also be able to
> shed some clarifying light on the source distribution case.
>
>
> Having said that, Jon Rosenberg (the Microsoft rep who posted the
> MS-PL for consideration here) also posted a small FAQ at that time
> which answered the question fairly clearly:
>
> "* Can MS-PL code be redistributed under a different license?: No. 
> The license states that "If you distribute any portion of the software
> in source code form, you may do so only under this license..." This
> restriction is similar to the restriction in the Mozilla Public
> License that states "You may not offer or impose any terms on any
> Source Code version that alters or restricts the applicable version of
> this License or the recipients' rights hereunder."  The MS-PL license
> explicitly prohibits relicensing of the original licensed code under a
> different license, regardless of whether the original code is
> redistributed in whole, in part or as part of a different piece of
> software."
>
>
> In particular:
>
> "...regardless of whether the original code is redistributed...as part
> of a different piece of software."
>
>
> John Cowen points out that derivative works are allowed, but 2(A) says
> they are "Subject to the terms of this license, including the license
> conditions and limitations in section 3." Thus derivative works are
> NOT allowed if they violate section 3, which says "If you distribute
> any portion of the software in source code form, you may do so only
> under this license..." The FAQ answer reinforces the fact that
> distribution of "any portion" includes when part of a derivative work
> (a "different piece of software").
>
>
> Chris Fagan (also of Microsoft) repeated the basic idea of this more
> recently in a post here:
>
> "Our intention in designing the MS-PL is most clearly understood by
> thinking about how a developer may want to make source code they
> developed available to their users (i.e. other developers etc).  A
> design goal of the MS-PL is to allow developers to choose to ensure
> that the specific rights in Section (2) continue to be available to
> downstream developers and users through generations of adoption and
> adaptation."
>
>
> In particular:
>
> "...to ensure that the specific rights in Section (2) continue to be
> available to downstream developers..."
>
> That certainly suggests that you cannot place any additional
> restrictions downstream of MS-PL code. Since you rather obviously
> cannot place FEWER restrictions on it, your only option is to place
> identical restrictions (ie, using the MS-PL).
>
>
> So lines of source code released under only MS-PL by their original
> author can never find themselves under another license by any means
> (though their compiled binary representation can). Attempting to
> create a derivative work that places those lines of code under another
> license (when they are within the derivative work) violates section
> 3(D) and thus violates your license to create said derivative work.
>
>
> Whether there is some clever way to legally keep pure MS-PL code
> distinct from pure BSDL code in a project that generates a single
> executable is perhaps a more complicated legal question (though
> linking is certainly valid). However, requiring a technical
> restriction of keeping the code distinct (often an impossible
> restriction depending on your needs) is probably not what one would
> call "compatible". I pity any developer who would saddle their
> fledgling open-source project with such a burden.
>
> ---------------------------------------------------------------------------
> Donovan Hawkins, PhD                 "The study of physics will always be
> Software Engineer                     safer than biology, for while the
> hawkins@cephira.com                   hazards of physics drop off as 1/r^2,
> http://www.cephira.com                biological ones grow exponentially."
> ----------------------------------------------------------------------
> -----
>
>
>


--
Zac Bowling
http://www.zacbowling.com
---

I support Mozilla Firefox. http://www.spreadfirefox.com/?q=affiliates&id=12079&t=1