Subject: Re: For Approval: Microsoft Permissive License
From: "John.Cowan" <jcowan@reutershealth.com>
Date: Mon, 12 Dec 2005 08:43:25 -0500

Rod Dixon, J.D., LL.M. scripsit:

> 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.

If I give you something with a BSD license attached, I'm telling you that
"[r]edistribution and use in source and binary forms [...] are permitted",
but that does not in itself *entitle* you to access to the source if
I haven't given you any source.  It just says that if you have source,
you can redistribute or use it.

> 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.

The MIT license is even clearer than the BSD license in this respect:
it grants permission "to any person obtaining a copy of this software
and associated documentation files" to do various things, but if you
*don't* have a copy of the software (sc. in source form) you aren't
granted anything.

Finally, in case you think the drafting of these licenses is obsolete,
let's look at the Apache 2.0 license, which grants the rights to
"reproduce, prepare Derivative Works of, publicly display, publicly
perform, sublicense, and distribute the Work [...] in Source or Object
form", but does *not* grant the right to obtain the work in either Source
or Object form if you don't have it already.

In short, there is no explicit grant of your supposed right to access
source code anywhere.  Rather, the licenses *presuppose* access to the
source: they are implicitly addressed to a person who has source code with
accompanying license in hand and wishes to know what they can do with it.

If that is *not* the case, the work is not Open Source, as we both agree.
But it's the factual situation of no access to the source, rather than
a lack of *right* to access the source, that makes it so.

As I said to begin with, 99% of the time this won't matter: releasing 
code under a permissive Open Source license without source is a pointless
thing to do.  But it is possible.

(IANAL, TINLA, as usual.)

-- 
John Cowan  jcowan@reutershealth.com  http://www.ccil.org/~cowan
Does anybody want any flotsam? / I've gotsam.
Does anybody want any jetsam? / I can getsam.
        --Ogden Nash, No Doctors Today, Thank You