Subject: Re: For Approval: Microsoft Permissive License
From: "Rod Dixon, J.D., LL.M." <roddixon@cyberspaces.org>
Date: Mon, 12 Dec 2005 07:49:51 -0500



> Rod Dixon, J.D., LL.M. scripsit:
>
>> but the Ms-PL is troubling for a couple of reasons. The Ms-PL does not
>> explicitly grant a right of access to source code.  On this point, I 
>> would
>> expect Microsoft to be at least as clear and explicit as IBM is in the 
>> IBM
>> Public License.
>
> I consider that to be an unimportant corner case.  One can release an 
> opaque
> block of binary bits under the BSD or MIT or Apache licenses, but the 
> resulting
> work is not open source because the source is not available.  The licenses
> themselves do nothing to prevent this result, however.

Re-read the BSD carefully. You seem to have overlooked an important 
distinction between the grant rights clauses in the BSD and the Ms-PL.
>
> OSD #2 is very different from the other clauses of the OSD.  All the 
> others
> specify what the license shall or shall not contain; OSD #2 is a 
> constraint
> on the licensor to make source code available.  If there's no source code,
> the result isn't open source, and it doesn't matter what license you use.

This is my point precisely...as it applies to the Original licensor and 
licensees. The grant rights clause must make an unequivocal grant of access 
to source code or the rest of the license does not work.

>> example, the phrase "only do so under a license that complies with this
>> license" does not seem all that permissive to me.
>
> I interpret that in the same way as the similar comment in the AFL 3.0
> (which I persuaded Larry to insert): the license must not *contradict*
> the provisions of the Ms-PL.

Hmm... I do not recall a similar "comment" in the Ms-PL. More important, a 
lawyer's reading of the phrase "only do so under a license that complies 
with this license" would not necessarily yield "you cannot contradict the 
provisions of the license."  But, the more serious problem with that phrase 
is that it seems inconsistent with the goal of a "permissive" license; if 
the licensee has to comply with ALL of the terms of the original license, 
that sounds like a different way of imposing a restrictive copyleft 
provision. This would not take the license out of the world of open source, 
but it would not make it permissive either. If prevention of license 
proliferation is a goal, then it is important that a license does what it's 
drafter says it does.

Rod Dixon
www.cyberspaces.org/webzine/