Subject: RE: For Approval: Microsoft Permissive License
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Fri, 28 Sep 2007 22:01:06 +0200

From: mdtiemann@gmail.com [mailto:mdtiemann@gmail.com] :
> Relevant to this, as I said in my interview with Peter Galli, I saw no
reason to challenge the title of "The Microsoft Community License", because
whether it is a community of one or one thousand, it's perfectly reasonable
for anybody to state the aspiration of creating a community in the world of
open source.

My main concern against the Microsoft proposed licences is in their name:
they contain the copyrighted and severely restricted trademark name
"Microsoft", which restricts the way it can be cited. So Microsoft must
explicitly state that the use of its name in the form of the displayed
licence name does not infringe its rights, including when the licence name
is cited in other products that would use this licence, even when they are
competing with Microsoft's own products.

If there are usage restrictions, with the effect of restricting the kind of
competition that softwares using this licence are allowed to do, requiring
developers to avoid naming the licence itself, then the licence is not open,
because changing the designation of a licence is normally not permitted, as
this would mean relicencing and not respecting the initial licence.

So Microsoft must explicitly state in its licence how the licence itself can
be named and cited without infringing its exclusive rights. The licence
should not even restrict advertising any competing product by displaying the
licence name. I am not sure that Microsoft will legally tolerate a
OpenOffice component that would use some parts licenced under the
Microsoft's proposed licences, and would display explicitly this licence
name citing Microsoft, despite OpenOffice is competing against Microsoft
Office and is NOT approved or supported by Microsoft... That's just one
example, where legal harassment may happen, which could be avoided if
Microsoft said explicitly how the licence name can be safely cited.

This discussion is not restricted to Microsoft proposed licences. This also
applies to other open licences proposed by IBM, Sun, and even the Berkely
University or others: they must be named with the licence without fearing a
legal suite for infringement of their registered and restricted trademarks.

If Microsoft fears some misuse of its most protected name, one suggestion is
for Microsoft to register another more permissive name (something like
"MS-Labs") and use this name in its proposed licences and allowing citations
using "MS-Labs" even if the citations of these licences prohibits naming
Microsoft itself, in a way similar to "This software and its sources are
licenced under the MS-Labs Community licence." Such a sentence should not
imply any warranty or support by Microsoft, and should not imply any
infringement of even its exclusive "MS-Labs" subdivision, and Microsoftmust
promiss that no infringement suite will be started against an open-sourcer
that chose to display or advertise its product using this sentence (which is
absolutely needed anyway in the copyright notice of the software itself).

If Microsoft considers that advertizing a product without having the
possibility to name its associated licence is what it wants, then this is a
severe limitation for the distribution of the open-sourced product, because
only Microsoft will have the possibility to advertise its own open-sourced
products or only those products from third-parties that it accepts to
promote and distribute itself. Having the possibility of advertising an
open-sourced or free product by naming the OSI-approved or FSF-approved and
compatible licence name is important for its promotion and widespread use.