Subject: Re: For Approval: Microsoft Permissive License
From: Alex Bligh <alex@alex.org.uk>
Date: Sun, 11 Dec 2005 10:40:58 +0000

Mahesh T. Pai wrote:
>  > 1. Definitions
>  > 
>  > The terms "reproduce", "reproduction", and "distribution" have the same
>  > meaning here as under U.S. copyright law.
> 
> Violates  #5 by  applying  US  law to  persons  and/or situations  not
> concerned with the US legal system.  Suppose somebody based in England
> applies this license to his software and distributes it to a person in
> Germany  using  a server  based  somewhere  in  Russia, it  is  highly
> unlikely  that the  English courts  will accept  the US  definition of
> these  terms.   (Not  that  there  is likely  to  be  any  significant
> difference in the definitions, but still...)

Disagree. It is merely a definition by reference. A UK court would apply
it. It may be unpalatable because it is US-centric (but that isn't
against the OSD - see how many licenses have US law clauses). It may
be unpalatable because it is a reference to a definition held outside
the license which may change (for instance, US law /might/ change to
say "distribution shall include/exclude X/Y/Z in the case of approved
defense contractors within the meaning of statute x.y.z" which would
had it been incorporated in the license be a breach of the fields
of endeavour clause) but the OSI appears wise enough not to apply its
criteria to the provisions of national law anyway (i.e. simply saying
the license was "under US law" would have the same effect as a reference
and be /more/ US centric as that would cover more than interpretation).

Thus I don't think this particular aspect at least is a problem.

For the record, I am also nervous, for the reason Brendan articulates,
about the OSI approving licenses which is is unclear either the OSI
or potential license users have the right to use because of potential
copyright issues on the license itself. It may be that Microsoft
have at some stage said "of course everyone can use this for whatever
they like"; a disadvantage of a third party application is that it
is difficult to check this.

Whilst I too would be keen for MS to embrace open source, I think
trying to construct a situation inevitably leading to the headline
"OSI approves the MS-Foo license and congratulates MS on
embracing open-source" without MS involvement is inevitably going
to backfire (amusing as it might be to watch).

Alex