Subject: RE: For Approval: Microsoft Permissive License
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Sat, 29 Sep 2007 05:46:23 +0200

 Sat, 29 Sep 2007 05:46:23 +0200
I'm sorry if this irritates you. But Micorosft is very active worldwide into
protecting its trademark, and finances several actions against those that
abuse its name, or pretend acting in the name of Microsoft for delivering
pseudo-secure products.

Microsoft is also very active into forbidding any other organization into
helping delivering Microsoft security patches, and has sent them legal cease
orders to stop continuing that, even if there was no proof that they had
done damage. The main argument was based on protecting the Microsoft
trademark, by forcing others to not use, even without demonstrated damages,
its trademark.

Because of this very active campaign by Microsoft to protect its product and
trademark, I prefer asking before, how you envision your policy of
protecting your trademark when you will combine this with a licence that
will permit anyone to use, build, modify and deliver products derived from
open-sourced software that are licenced named with "Microsoft" in it.

My intent is not to irritate you, you have the right to do this, but things
must be clear, because if users of the MS licenced sources are seeing your
trademark in the name of the licence, they may then wonder if this is safe
for them to start a project that may depend on your product, that they will
also be forced to designate, and describe and support, for example in a
large corporation for a project depending on your licenced code but
deployments in areas where this may conflict with their strict licencing
policy (notably if they don't know if they have licences for Microsoft
copyrighted products, and no EULA). If some lawyer comes in one of their
subsidiary and finds some products that include a named Microsoft licence
but no EULA because it is deployed for example on Linux servers or other
types of machines, for which the organization has built some infrastructure
using some parts covered by your envisioned open-sourced licence, then they
may simply decide not using it, instead of taking risks (because their own
users could think that they have now a valid MS licence for other Microsoft
proprietary products).

Suppose for example that someone makes an OpenOffice addon based on your
open-sourced licenced products, and integrates it in the installation of
OpenOffice, then he may think that, if anything is not working as he wants
with this valid combination of OpenOffice+your licence that he has a licence
for Office, and will request assistance to Microsoft, or will feel they have
the right to use some Microsoft Office products as an alternative, even
though they did not buy it. Some users may also misunderstand the legal
complexities of your open-sourced licence, and will then simply think that
the combined product is not suitable for their environment, as they have no
EULA from you and don't want to get into any Microsoft EULA licencing scheme
(there may even be oppositions about their desire to accept your product, as
they stringly militate against anything that could mean a support to
Microsoft; even if you think that this is irrationale, this is still their
right).

There are two ways to avoid this situation:
* possibly not naming Microsoft namely in the name of the licence, but using
some other name owned by Microsoft. Using an acronym containing "MS" could
be a solution showing still the origin of the licence and the fact that
Microsoft supports this licence actively, but at least this will solve the
problem related to the trademark itself.
* Another thing important will be to not use only obscure legal terms in
your licence, but starting with a clear indication of the goal of the
licence (sort of preamble, like in the FSF licences, not directly binding
with the regard to the licence applicability itself and its effect on the
licenced product, but about the indended usage of the licence in various
products, and showing that the licence is not made to protect only the
interest of Microsoft, but could be used equally by others for their own
benefit, without fearing infringing anything, provided that the licence
conditions are respected). What is more concerning open-source developers,
is not much the intrinsic merits or qualities of the licenced product but
their own legal protection before starting to use the covered work, building
things with it, and delivering it to others.

In fact, today, with the proliferation of licences, and the many complex
issues that are coming by an incrisingly more complex legal system (that
must take into account not only the national legislation, but also
international agreements, organizations and treaties that have national
consequences, despite the legal equivalences are still not completely well
established to implement these in a way that is easy to understand) the
complexity of problems (and the now proliferating trials in the world
related to possible IP violations, where huge amounts of money are
requested, and lots of money is needed to defend), someone may safely wonder
how they will defend face to a manybillionarry organization like Microsoft
and its armies of lawyers.

I suppose that Microsoft, when starting some legal suite, will consider the
size of its opponent, but anyway many people couldn't even resist to a
demand from Microsoft even if they are in their right: they will immediately
desist. Note that Microsoft is not always acting to protect its trademark
using its own name: there are a lot of agencies worldwide seeking to help
Microsoft in its campaign (because they know that Microsoft is profitable).

Note also that the question of "fair use" when naming a licence does not
apply elsewhere than in US. In other countries, even naming someone is
prohibit if this is against the interest of the named person or competes
with its activities. So if someone created or derived a product under a
licence naming Microsoft, but still competing with other Microsoft
commercial offers, they could not even name the licence by fear of being
prosecuted.

I live in France, where many trials are started every year by ordinary
people or celebrities or organizations of all sizes that defend their name
when someone has used it in a way that competed with their interests. Quite
often, they win in these trials. Not much money is collected, but peoples,
or journalists, or book editors are forced to cancel a publication or stop
some activities (if they refuse, then a court order may condemn them to pay
huge damages for each day where the Court order was not executed). "Fair
use" does not exist in France, and the legal "right of quotation" does not
include the right to present any creation in a way that could be damaging
for the image of a person, author, creator, or to advertise things against
the interest of the organizations. Things have changed a bit since the last
few years, allowing comparative advertising, but this does not apply to all
domains of products and for all medias.

Even if trials are not as costly in France than in US, they are still very
expensive, because they are much longer than in US and the legal system is
much more complex to understand (so you really need very good lawyers,
notably in the Commerce Courts where such trials about licencing issues
would be prosecuted if you're an organization, or Instance Courts if you're
an individual person not making business with the licenced products). So
effectively, the context caused by legal uncertainty is problematic. Things
are much simpler if the intended goals are explicated at the beginning of
any contractual agreement, if we can avoid Courts for solving any
litigation, notably because many Court decisions are immediately applicable,
even when there is a (lengthy) procedure for appealing.

A good mutual agreement where the interests of both parties are equally
balanced is always better than any trial. I think it's true everywhere,
including in US. So it's best to prepare for the worst, before getting into
troubles later because of something that was not correctly negociated.

> -----Message d'origine-----
> De : Sam Ramji [mailto:sramji@microsoft.com]
> Envoyé : samedi 29 septembre 2007 04:40
> À : verdy p@wanadoo.fr; 'Bob Gomulkiewicz'; 'Michael Tiemann'
> Cc : 'License Discuss'
> Objet : RE: For Approval: Microsoft Permissive License
> 
> Philippe:
> 
> This is really not the intent at all of our licenses.  What examples do
> you have where this has been done by other organizations and upheld under
> legal inspection in any jurisdiction?