Subject: Re: License compatibility of MS-PL and MS-CL (Was: (RE: Groklaw's OSI item (was: When will CPAL actually be _used_?))
From: "Chris Travers" <chris.travers@gmail.com>
Date: Wed, 29 Aug 2007 16:07:45 -0700
Wed, 29 Aug 2007 16:07:45 -0700
On 8/29/07, Matthew Flaschen <matthew.flaschen@gatech.edu> wrote:
>
> Chris Travers wrote:
>
> > How does the GPL effectively alter what you can do with the code?  If it
> > doesn't alter it, isn't the point moot?
>
> Yes, it is essentially moot if the BSD code is unmodified.  I've been
> saying that for a while now.  In other words, unmodified BSD code can
> also be sublicensed GPL (even though people can still use it under BSD).
> But unmodified MS-PL can't be sublicensed under GPL.
>
> >> It might be better if you reply with a full license, since BSD is short
> >> and you've made so many changes.
> >>
> > Ok, modified based on the OpenSource.Org version:
>
> Thanks.
>
> >> But this includes "the accompanying software" when it is part of a
> >> derivative work.
> >>
> > Is the BSDL not in effect for the accompanying software when it is part
> > of a derivative work?
>
> Yes, but "in effect" only means the BSD license still needs to accompany
> the code.



No.  "in effect" meaning that anyone may safely extract the excerpts and use
them according to the license since the author's copyrights don't reach in.

> Ok. here is my view of the sublicensing issue and why it doesn't apply
> > in this case.  In a literary work, an author may grant a publisher the
> > right to sublicense the work.  This means that the publisher would now
> > be able to grant additional permissions to third parties.
>
> No, sublicensing means licensing under a license that grants a subset of
> the original license rights.



Doesn't this imply extending the restrictions of the license to the code in
question?

In effect, however, isn't the above goal usually accomplished by mixing in
components under other licenses so that the information required to safely
excersize the original public license is missing?  I.e. the above
distinction makes no sense wrt BSD code since modifications need not be
tracked separately so one cannot safely extract out BSDL components.

Does my hypothetical license change this in any meaninful way by ensuring
that the license itself is still in effect?

> Define sublicense.  I have effectively prevented any other licenses from
> > altering exactly what you can do with the code.  Is there another
> > definition of sublicense I should be aware of?
>
> Simply, putting it under another (more restrictive) license besides or
> in addition to the original.



I would have thought it would have meant "providing a third party with a
different license for the covered code."  My license might effectively
prohibit this because the original code areas are flagged as both owned and
licensed by me.  Thus it would ensure that no other licenses could apply to
those excerpts as such.

How would this be different in actual effect to the MS-PL?

>> Copyright elements of /which/ code present after modification?
> >>
> > Copyrighted original elements of the MS-PL code.
> >
> > For example, suppose I take MS-PL code and the internals of every
> > function but leave the overall structure of the code intact (ordering
> > and selection of each function and which file it belongs to).  One might
> > argue that this is a derivative work because the ordering of the
> > functions in the code is expressive.  Does the MS-PL require that these
> > elements remain under the MS-PL?
>
> Yes.  Any copyrighted MS-PL source code must remain under *only* MS-PL.



Ok, here is where we are now reading the MS-PL differently.  If you are
right because these elements (which are not necessarily code fragments) are
still protected, then you would be correct.  THe case here is that the souce
code or fragments thereof are not the issue but rather other elements which
might relate to derivative work standards.  This would hinge on a reading of
"any portion of."


> It can't be under GPL *also*, even if putting it under GPL also would
> have no real effect (e.g. for unmodified MS-PL code).


In that case, wouldn't the issue be moot?   But the question above isn't
about source code but elements other than code itself which may be
copyrighted.  My hypothetical license would seem to allow those to co-exist
with code in other licenses.  If the MS-PL does *not* allow those
non-literal elements to coexist, then derivative works would need to be
under th MS-PL as well.

(Those are elements I can be reasonably sure that the GPL would claim as its
own if the original code was under the GPL.)

The question is whether the MS-PL applies only at the code fragment level or
whether it applies to the original element level such as overall structure
of the code (and thus would extend to derivative works).  If the MS-PL does
not extend to some level of abstraction beyond the actual source itself, the
question of adding the GPLv3 as an additional license seems moot.

IANAL

Best Wishes,

Chris Travers




On 8/29/07, Matthew Flaschen <matthew.flaschen@gatech.edu> wrote:
Chris Travers wrote:

> How does the GPL effectively alter what you can do with the code?  If it
> doesn't alter it, isn't the point moot?

Yes, it is essentially moot if the BSD code is unmodified.  I've been
saying that for a while now.  In other words, unmodified BSD code can
also be sublicensed GPL (even though people can still use it under BSD).
But unmodified MS-PL can't be sublicensed under GPL.

>> It might be better if you reply with a full license, since BSD is short
>> and you've made so many changes.
>>
> Ok, modified based on the OpenSource.Org version:

Thanks.

>> But this includes "the accompanying software" when it is part of a
>> derivative work.
>>
> Is the BSDL not in effect for the accompanying software when it is part
> of a derivative work?

Yes, but "in effect" only means the BSD license still needs to accompany
the code.


No.  "in effect" meaning that anyone may safely extract the excerpts and use them according to the license since the author's copyrights don't reach in.

> Ok. here is my view of the sublicensing issue and why it doesn't apply
> in this case.  In a literary work, an author may grant a publisher the
> right to sublicense the work.  This means that the publisher would now
> be able to grant additional permissions to third parties.

No, sublicensing means licensing under a license that grants a subset of
the original license rights.


Doesn't this imply extending the restrictions of the license to the code in question?

In effect, however, isn't the above goal usually accomplished by mixing in components under other licenses so that the information required to safely excersize the original public license is missing?  I.e. the above distinction makes no sense wrt BSD code since modifications need not be tracked separately so one cannot safely extract out BSDL components.

Does my hypothetical license change this in any meaninful way by ensuring that the license itself is still in effect?

> Define sublicense.  I have effectively prevented any other licenses from
> altering exactly what you can do with the code.  Is there another
> definition of sublicense I should be aware of?

Simply, putting it under another (more restrictive) license besides or
in addition to the original.


I would have thought it would have meant "providing a third party with a different license for the covered code."  My license might effectively prohibit this because the original code areas are flagged as both owned and licensed by me.  Thus it would ensure that no other licenses could apply to those excerpts as such.

How would this be different in actual effect to the MS-PL?

>> Copyright elements of /which/ code present after modification?
>>
> Copyrighted original elements of the MS-PL code.
>
> For example, suppose I take MS-PL code and the internals of every
> function but leave the overall structure of the code intact (ordering
> and selection of each function and which file it belongs to).  One might
> argue that this is a derivative work because the ordering of the
> functions in the code is expressive.  Does the MS-PL require that these
> elements remain under the MS-PL?

Yes.  Any copyrighted MS-PL source code must remain under *only* MS-PL.


Ok, here is where we are now reading the MS-PL differently.  If you are right because these elements (which are not necessarily code fragments) are still protected, then you would be correct.  THe case here is that the souce code or fragments thereof are not the issue but rather other elements which might relate to derivative work standards.  This would hinge on a reading of "any portion of."
 
It can't be under GPL *also*, even if putting it under GPL also would
have no real effect ( e.g. for unmodified MS-PL code).

In that case, wouldn't the issue be moot?   But the question above isn't about source code but elements other than code itself which may be copyrighted.  My hypothetical license would seem to allow those to co-exist with code in other licenses.  If the MS-PL does *not* allow those non-literal elements to coexist, then derivative works would need to be under th MS-PL as well.

(Those are elements I can be reasonably sure that the GPL would claim as its own if the original code was under the GPL.)

The question is whether the MS-PL applies only at the code fragment level or whether it applies to the original element level such as overall structure of the code (and thus would extend to derivative works).  If the MS-PL does not extend to some level of abstraction beyond the actual source itself, the question of adding the GPLv3 as an additional license seems moot.

IANAL

Best Wishes,

Chris Travers