Subject: RE: For Approval: Microsoft Permissive License
From: "Thatcher, Jim E. (Woodcock Washburn)" <jthatcher@woodcock.com>
Date: Thu, 23 Aug 2007 15:04:08 -0400
Thu, 23 Aug 2007 15:04:08 -0400
Thanks for the introduction Chris.  I think most of the issues raised in
this thread are addressed in a response I just posted to another thread.



Jim Thatcher
Of Counsel
Woodcock Washburn LLP 
999 Third Ave, Suite 3600
Seattle, WA  98104
206.332.1117 
Fax: 206.624.7317 
Mobile: 425-445-9535
Email: jthatcher@woodcock.com
www.woodcock.com



-----Original Message-----
From: Chris Fagan [mailto:chrisfa@microsoft.com]
Sent: Wednesday, August 22, 2007 4:21 PM
To: Stephen Walli; license-discuss@opensource.org
Cc: Michael R. Bernstein; Chris Travers; Thatcher, Jim E. (Woodcock
Washburn)
Subject: RE: For Approval: Microsoft Permissive License


All,
I appreciate the dialogue that's occurred during this submission
process, and it's been exciting and educational to participate in. I'll
continue to engage (as will other folks from Microsoft) around the
history of the MS-PL and MS-CL. In other cases, however, IANAL. To help
with legal related questions, I'm cc'ing Jim Thatcher of Woodcock
Washburn LLP for his input.  Jim is an experienced IP lawyer and former
software engineer who will be able to help me respond to some of the
licensing questions. I'm hopeful Jim's thoughts can help in working
through issues raised in this and other threads.

Chris

-----Original Message-----
From: Stephen Walli [mailto:stephen.walli@gmail.com]
Sent: Tuesday, August 21, 2007 11:44 AM
To: license-discuss@opensource.org
Cc: Michael R. Bernstein; Chris Travers
Subject: Re: For Approval: Microsoft Permissive License

When I worked at Microsoft, Legal and Corp. Affairs beat a really simple
rule into people (especially program managers trying to be
helpful):
The license says what the license say.  Your job is not to interpret the
license for anyone.

So yes, it's pretty funny that we're all interpreting here as
non-lawyers.  (IAANAL.) Lawyers are also notorious for not wanting to
set up a body of competing text to a license or contract.

However, that means there's a specific problem in the context of this
discussion on this list, especially with JonR's original statement that,
"Microsoft believes that this license provides unique value to the open
source community by delivering simplicity, brevity, and permissive terms
combined with intellectual property protection".  If the Microsoft
lawyers presently responsible for these licenses are not DIRECTLY
involved in the discussion about the outcomes they're considering (or
trying to prevent), then you will approve the license you deserve.

As much as I respect JonR and Bill Hilf, they are not lawyers either.
For this discussion to be valuable, and for the resulting licenses to be
useful and not merely long term sources of confusion, you need to
deliver a set of questions to Microsoft and get the answers OR new
license text under a new revision number if they prefer not to create
competing interpretive text from the lawyers.  The Microsoft lawyers
need to be part of the discussion.

The license's simplicity and brevity are great, but  to fulfill those
purposes developer readers of the license  must not be [unintentionally]
mislead by terms of art.  I remember in early discussions around similar
license attempts inside Microsoft, that as a casual reader with no
formal legal training I completely misunderstood "distribute any portion
of the software" with regards to how I needed to think about derivatives
and the meaning of "the software".  It was explained to me by the
lawyers that "the software" had clear specific meaning.  Apparently not.

pax

On 8/21/07, Chris Travers <chris.travers@gmail.com> wrote:
>
>
> On 8/21/07, Michael R. Bernstein <michael@fandomhome.com> wrote:
> >
> >
> > Hmm. IANAL, but this seems at least a somewhat idiosyncratically
> > narrow interpretation of 'you may do so only under this license'.
> >
> > You are grouping the words in one way, but ignoring the groupings
> > 'may do so' and 'only under', that produces the corollary
> > interpretation 'you may not distribute under any other license'. If
> > this is NOT an intended interpretation, rewording 3D (and the MS-CL
> > 3E) to exclude that interpretation should be relatively simple.
>
> You know, this is pretty funny.  IANAL, neither are you.  We are
> arguing over legal theory here and there is nobody chiming in with who
> is willing to correct.
>
> The legitimate question of law here is whether any copyright license
> permits distribution only under the terms of the license provided that
> copyright is not abused in the process etc.  My argument is that the
> same wording is implied in the combination of the BSDL *and* US
> Copyright law. But again, IANAL and so neither of us are likely to be
> able to know for certain whether we are right until we buy appropriate
> legal opinions from duly licensed vendors of said opinions ;-)
>
> > BTW, still haven't seen any statement from Bill Hilf or Jon
> > Rosenberg as to whether 3D (or indeed the license as a whole) is or
> > is not intended to exclude the use of other licenses for
> > distribution in source form.\
>
>
> The question is:  does it exclude other licenses for the work as a
> whole? For derivative portions?  etc.  Provided no other license
> compatibilities exist (let us leave the GPL v3 in part  because there
> are some oddities that make me unsure about whether the licenses are
> compatible or not in corner cases due to differences in definitions).
>
> > > > See, I read 3D as an exception or condition to 2A, effectively
> altering
> > > > the meaning of 2A to 'any derivative works except in source
> > > > form'.
> > >
> > > That would be plausible if 3D mentioned derivative works, but it
> doesn't.
> > > It speaks of the original software (or parts of it) only.
> >
> > Hmm. Well, OK. Again, IANAL, but that seems... wrong somehow.
>
>
> I am not so sure.  Is "the software" limited to the original copy?  I
> don't see it defined in the license anywhere, and so I would think
> that this only applies to original versions of the source.
>
> To back this definition, I would note that the MS-CL *does* at least
> attempt to extend this to changes made to the software specifically by
> requiring that files containing any portion of the software must be
> under the same license.  This is GPL-incompatible because the GPL does
> not permit any further restrictions, such as preventing the mingling
> of code under incompatible licenses in the same physical file.  If
> this was the means, why not include such a clause in the MS-PL as
> well?  It seems to me therefore that changes to the software are not
> necessarily required to be under the license.
>
> Any comment from MS on this interpretation?
>
> Best Wishes,
> Chris Travers
>


--
mailto:  stephen.walli@gmail.com
mobile: +1 425 785 6102
skype:  stephen.walli
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Message
Thanks for the introduction Chris.  I think most of the issues raised in this thread are addressed in a response I just posted to another thread.


Jim Thatcher
Of Counsel
Woodcock Washburn LLP

999 Third Ave, Suite 3600
Seattle, WA  98104
206.332.1117
Fax: 206.624.7317
Mobile: 425-445-9535
Email: jthatcher@woodcock.com
www.woodcock.com


-----Original Message-----
From: Chris Fagan [mailto:chrisfa@microsoft.com]
Sent: Wednesday, August 22, 2007 4:21 PM
To: Stephen Walli; license-discuss@opensource.org
Cc: Michael R. Bernstein; Chris Travers; Thatcher, Jim E. (Woodcock Washburn)
Subject: RE: For Approval: Microsoft Permissive License


All,
I appreciate the dialogue that’s occurred during this submission process, and it’s been exciting and educational to participate in. I’ll continue to engage (as will other folks from Microsoft) around the history of the MS-PL and MS-CL. In other cases, however, IANAL. To help with legal related questions, I’m cc’ing Jim Thatcher of Woodcock Washburn LLP for his input.  Jim is an experienced IP lawyer and former software engineer who will be able to help me respond to some of the licensing questions. I’m hopeful Jim’s thoughts can help in working through issues raised in this and other threads.

Chris

-----Original Message-----
From: Stephen Walli [mailto:stephen.walli@gmail.com]
Sent: Tuesday, August 21, 2007 11:44 AM
To: license-discuss@opensource.org
Cc: Michael R. Bernstein; Chris Travers
Subject: Re: For Approval: Microsoft Permissive License

When I worked at Microsoft, Legal and Corp. Affairs beat a really simple rule into people (especially program managers trying to be
helpful):
The license says what the license say.  Your job is not to interpret the license for anyone.

So yes, it's pretty funny that we're all interpreting here as non-lawyers.  (IAANAL.) Lawyers are also notorious for not wanting to set up a body of competing text to a license or contract.

However, that means there's a specific problem in the context of this discussion on this list, especially with JonR's original statement that, "Microsoft believes that this license provides unique value to the open source community by delivering simplicity, brevity, and permissive terms combined with intellectual property protection".  If the Microsoft lawyers presently responsible for these licenses are not DIRECTLY involved in the discussion about the outcomes they're considering (or trying to prevent), then you will approve the license you deserve.

As much as I respect JonR and Bill Hilf, they are not lawyers either. For this discussion to be valuable, and for the resulting licenses to be useful and not merely long term sources of confusion, you need to deliver a set of questions to Microsoft and get the answers OR new license text under a new revision number if they prefer not to create competing interpretive text from the lawyers.  The Microsoft lawyers need to be part of the discussion.

The license's simplicity and brevity are great, but  to fulfill those purposes developer readers of the license  must not be [unintentionally] mislead by terms of art.  I remember in early discussions around similar license attempts inside Microsoft, that as a casual reader with no formal legal training I completely misunderstood "distribute any portion of the software" with regards to how I needed to think about derivatives and the meaning of "the software".  It was explained to me by the lawyers that "the software" had clear specific meaning.  Apparently not.

pax

On 8/21/07, Chris Travers <chris.travers@gmail.com> wrote:
>
>
> On 8/21/07, Michael R. Bernstein <michael@fandomhome.com> wrote:
> >
> >
> > Hmm. IANAL, but this seems at least a somewhat idiosyncratically
> > narrow interpretation of 'you may do so only under this license'.
> >
> > You are grouping the words in one way, but ignoring the groupings
> > 'may do so' and 'only under', that produces the corollary
> > interpretation 'you may not distribute under any other license'. If
> > this is NOT an intended interpretation, rewording 3D (and the MS-CL
> > 3E) to exclude that interpretation should be relatively simple.
>
> You know, this is pretty funny.  IANAL, neither are you.  We are
> arguing over legal theory here and there is nobody chiming in with who
> is willing to correct.
>
> The legitimate question of law here is whether any copyright license
> permits distribution only under the terms of the license provided that
> copyright is not abused in the process etc.  My argument is that the
> same wording is implied in the combination of the BSDL *and* US
> Copyright law. But again, IANAL and so neither of us are likely to be
> able to know for certain whether we are right until we buy appropriate
> legal opinions from duly licensed vendors of said opinions ;-)
>
> > BTW, still haven't seen any statement from Bill Hilf or Jon
> > Rosenberg as to whether 3D (or indeed the license as a whole) is or
> > is not intended to exclude the use of other licenses for
> > distribution in source form.\
>
>
> The question is:  does it exclude other licenses for the work as a
> whole? For derivative portions?  etc.  Provided no other license
> compatibilities exist (let us leave the GPL v3 in part  because there
> are some oddities that make me unsure about whether the licenses are
> compatible or not in corner cases due to differences in definitions).
>
> > > > See, I read 3D as an exception or condition to 2A, effectively
> altering
> > > > the meaning of 2A to 'any derivative works except in source
> > > > form'.
> > >
> > > That would be plausible if 3D mentioned derivative works, but it
> doesn't.
> > > It speaks of the original software (or parts of it) only.
> >
> > Hmm. Well, OK. Again, IANAL, but that seems... wrong somehow.
>
>
> I am not so sure.  Is "the software" limited to the original copy?  I
> don't see it defined in the license anywhere, and so I would think
> that this only applies to original versions of the source.
>
> To back this definition, I would note that the MS-CL *does* at least
> attempt to extend this to changes made to the software specifically by
> requiring that files containing any portion of the software must be
> under the same license.  This is GPL-incompatible because the GPL does
> not permit any further restrictions, such as preventing the mingling
> of code under incompatible licenses in the same physical file.  If
> this was the means, why not include such a clause in the MS-PL as
> well?  It seems to me therefore that changes to the software are not
> necessarily required to be under the license.
>
> Any comment from MS on this interpretation?
>
> Best Wishes,
> Chris Travers
>


--
mailto:  stephen.walli@gmail.com
mobile: +1 425 785 6102
skype:  stephen.walli
IM:       stephenrwalli at hotmail | aim | yahoo OR stephen.walli at gmail
flickr:   http://www.flickr.com/photos/stephenrwalli
blog:    http://stephesblog.blogs.com ("Once more unto the breach")