Subject: Re: For Approval: Microsoft Community License
From: Brendan Scott <brendan@opensourcelaw.biz>
Date: Sun, 11 Dec 2005 15:46:05 +1100

I make no comment on the license.  As to the process, I am not fussed by applications
by proxy. I make these observations:


The first is that the terms of the license are themselves the subject of copyright.
 In order for the terms to be listed on the OSI website the copyright holder must necessarily
be involved - preferably doing the submission.    


The second issue, relating to the first, is that anyone using the license must themselves
have the right to copy the license.  An application by proxy means that third parties
do not have any assurance that they are permitted to reproduce the license terms. 
 

The third is that OSI has plenty of applications for approval.  It should therefore
give priority to those which are likely to be practically implemented.  In this respect,
having a third party submit a license does not inspire confidence.  The copyright holder
ought to be proposing the license for approval and stating an intention to use. 


In short the process of approval is undermined unless the copyright holder of the license
submits to the jurisdiction of the OSI.  Exactly who does it is not to the point, but
there must be a clear chain of authority from the ultimate copyright holder.  I would
repeat similar comments in relation to licenses which contain a trade mark as part of
their name. 



Brendan 





David Dillard wrote:
> Mr. Cowan,
> 
> Are you doing this on Microsoft's behalf?
> 
> If not, this presents an interesting question: should someone be able to
> submit a license created by another entity for approval as an open
> source license?  I can definitely see a logic to it.  But I'm just not
> sure it would be the right thing to do.
> 
> 
> --- David
> 
> 
> 
>>-----Original Message-----
>>From: John Cowan [mailto:cowan@ccil.org] 
>>Sent: Friday, December 09, 2005 3:30 PM
>>To: license-discuss@opensource.org
>>Subject: For Approval: Microsoft Community License
>>
>>Microsoft is adding new licenses to its Shared Source 
>>Initiative which I believe qualify as open-source licenses.  
>>The second of these is a simple permissive license called the 
>>Microsoft Community License (MS-CL).
>>The HTML is online at
>>http://www.microsoft.com/resources/sharedsource/licensingbasic
>>s/communitylicense.mspx
>>I include the full text in plain form here for convenience in 
>>commenting.
>>
>>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.
>>
>>Microsoft Community License (Ms-CL)
>>Published: October 18, 2005
>>
>>This license governs use of the accompanying software. If you 
>>use the software, you accept this license. If you do not 
>>accept the license, do not use the software.
>>
>>1. Definitions
>>
>>The terms "reproduce", "reproduction", and "distribution" 
>>have the same meaning here as under U.S. copyright law.
>>
>>"You" means the licensee of the software.
>>
>>"Licensed patents" means any Microsoft patent claims which 
>>read directly on the software as distributed by Microsoft 
>>under this license.
>>
>>2. Grant of Rights
>>
>>(A) Copyright Grant- Subject to the terms of this license, 
>>including the license conditions and limitations in section 
>>3, Microsoft grants you a non-exclusive, worldwide, 
>>royalty-free copyright license to reproduce the software, 
>>prepare derivative works of the software and distribute the 
>>software or any derivative works that you create.
>>
>>(B) Patent Grant- Subject to the terms of this license, 
>>including the license conditions and limitations in section 
>>3, Microsoft grants you a non-exclusive, worldwide, 
>>royalty-free patent license under licensed patents to make, 
>>have made, use, practice, sell, and offer for sale, and/or 
>>otherwise dispose of the software or derivative works of the software.
>>
>>3. Conditions and Limitations
>>
>>(A) Reciprocal Grants- Your rights to reproduce and 
>>distribute the software (or any part of the software), or to 
>>create and distribute derivative works of the software, are 
>>conditioned on your licensing the software or any larger work 
>>you create under the following terms:
>>
>>1.  If you distribute the larger work as a series of files, 
>>you must grant all recipients the copyright and patent 
>>licenses in sections 2(A) & 2(B) for any file that contains 
>>code from the software. You must also provide recipients the 
>>source code to any such files that contain code from the 
>>software along with a copy of this license. Any other files 
>>which are entirely your own work and which do not contain any 
>>code from the software may be licensed under any terms you choose.
>>
>>2.  If you distribute the larger work as a single file, then 
>>you must grant all recipients the rights set out in sections 
>>2(A) & 2(B) for the entire larger work. You must also provide 
>>recipients the source code to the larger work along with a 
>>copy of this license.
>>
>>(B) No Trademark License- This license does not grant you any 
>>rights to use Microsoft's name, logo, or trademarks.
>>
>>(C) If you distribute the software in source code form you 
>>may do so only under this license (i.e., you must include a 
>>complete copy of this license with your distribution), and if 
>>you distribute the software solely in compiled or object code 
>>form you may only do so under a license that complies with 
>>this license.
>>
>>(D) If you begin patent litigation against Microsoft over 
>>patents that you think may apply to the software (including a 
>>cross-claim or counterclaim in a lawsuit), your license to 
>>the software ends automatically.
>>
>>(E) The software is licensed "as-is". You bear the risk of 
>>using it. Microsoft gives no express warranties, guarantees 
>>or conditions. You may have additional consumer rights under 
>>your local laws which this license cannot change. To the 
>>extent permitted under your local laws, Microsoft excludes 
>>the implied warranties of merchantability, fitness for a 
>>particular purpose and non-infringement.
>>
>>[Note:  The Microsoft Limited Permissive License and the 
>>Microsoft Limited Community License forbid usage on 
>>non-Windows systems and are obviously not open source.  The 
>>Microsoft Reference License forbids modification and is 
>>likewise obviously not open source.]
>>
>>-- 
>>De plichten van een docent zijn divers,         John Cowan
>>die van het gehoor ook.                         cowan@ccil.org
>>      --Edsger Dijkstra                         
>>http://www.ccil.org/~cowan
>>
> 
> 
> 

-- 
Brendan Scott IT Law Open Source Law 
0414 339 227 http://www.opensourcelaw.biz
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