Subject: Re: For Approval: Microsoft Community License
From: Brian C <brianwc@ocf.berkeley.edu>
Date: Fri, 09 Dec 2005 13:47:56 -0800

Hello,

Alex Bligh wrote:
> John Cowan wrote:
>> I believe that this license should be approved by OSI even though it is
>> basically similar to more widely used weak-reciprocal licenses, because
>> it is better to encourage Microsoft in particular to release under an
>> OSI-approved license than not -- I think it very unlikely that they will
>> go back and adopt some existing license.
> 
> Possibly true, but it is asymmetric and thus should not be approved
> for the same reason OVPL wasn't.
> 
> A contributor who uses code in the covered files, then distributes
> his own work has to do so under (broadly) the terms of this
> license (specifically the copyright and patent grant sections).
> 
> However, certain terms of the license only apply to such subsequent
> distributors, and not to Microsoft. For instance, the subsequent
> distributors are not protected by the warranty disclaimer, and
> only Microsoft is protected by the patent defense clause.
> 
> Therefore, I do not believe it meets the OSD as currently interpreted
> post-OVPL.
> 
> Alex

Alex's concerns can be captured by a criterion that the OSI previously 
had indicated would govern license approval (although now I am unsure it 
remains OSI policy until the proliferation committee's work is done). 
Nonetheless, OSI previously provided three criteria, above and beyond 
the OSD, the third of which was:

"The license must be reusable. If the license contains proper names of 
individuals, associations, or projects, these must be incorporated by 
reference from an attachment that declares the names of the issuer and 
any other cited parties, and which can be modified without changing the 
terms of the license. As the sole exception, the license may name its 
owner and steward." (previously part of the license proliferation 
statement at opensource.org)

This is probably good policy from a proliferation standpoint.

Microsoft's license could be approved, and could comport with the above 
quoted policy, if they simply removed the proper name 'Microsoft' from 
the license text and changed each occurrence to 'the Software 
Distributor' (except the first occurrence in sec. 1 where the article 
'the' should be omitted and except for the first occurrence in 2(E) 
where 'the' should be capitalized) and then define 'Software 
Distributor' by reference in an attachment.

Each subsequent distributor would include their own name in such an 
attachment, and Alex's concerns would not apply. However, such a scheme 
poses another problem. A downstream recipient wants royalty-free patent 
rights (among other things) not just from the most recent distributor 
(whose name appears in the license) but also from all prior distributors 
upon whose work the current software is based. So, the mechanism needs 
to be that when one goes to distribute your derivative work, one does 
not replace the name of the prior distributor with your own, but rather 
concatenates your name to theirs.

Example: Microsoft distributes foo under MS-CL and in the license 
attachment defines 'Software Distributor' as 'Microsoft'. Alice creates 
a derivative of foo, foobar, and when she distributes foobar, she should 
alter the attachment to read 'Microsoft and Alice'. Then if Bob reworks 
foobar, he would alter it to read 'Microsoft, Alice, and Bob' and so on.

With those modifications, the MS-CL should be approved. Without them it 
is not reusable and so contributes to the proliferation problem, and it 
may well be discriminatorily asymmetric due to the way it uses the 
proper name of the assumed original developer.

Brian