Subject: Re: [FYI] Microsoft license spurns open source
From: Seth David Schoen <>
Date: Mon, 25 Jun 2001 11:42:16 -0700

 Mon, 25 Jun 2001 11:42:16 -0700
Ravicher, Daniel B. writes:

> > Also, I conclude from your article that I asked the wrong question.
> > Perhaps the question I should have asked is:
> > 
> > 	Given that in a mass-market license the consumer has
> > 	no negotiating stance, and that in such markets the
> > 	natural econmic evolution of the marketplace severly
> > 	limits customer choice (due to distribution of market
> > 	share in mature markets, in this instance combined
> > 	with the insider tie to other MS products), what
> > 	legally recognized limits exist on the degree of
> > 	"invasiveness" into the purchaser's use that a license
> > 	can successfully enforce?
> Basically, the amount of limitations a licensor can place on a licensee are
> minimal.  There are some antitrust concerns when the licensor has
> significant market share, but the major source of repercussion for onerous
> terms in a software license is the marketplace.  Just as customers will go
> to a competitor if price is too high, customers are assumed to go to
> competitors if license terms are too intrusive.  I'd also think about maybe
> not wanting to support arguments against apparently unfair license terms,
> because this seems to be a thrust of MS's attack on the GPL.  They're saying
> that the GPL's terms are too harsh, too severe, and just plain unfair.  

Remember that the GPL is not a mass-market license like many EULAs.
The GPL asserts rights that copyright holders  already have  under
copyright law, and then tries to condition your license on your
agreement to a lot of things which are, indeed, very "severe" (I
wouldn't agree about harsh or unfair).

The mass-market licenses we're discussing say that certain uses (not
reached by copyright law) of a product you've purchased, which you
would otherwise be legally entitled to make, are forbidden.

I'm afraid my thinking about software is too permeated with non-market
concerns to be sympathetic to your general argument here, but I wanted
to emphasize this distinction.  The GPL does not try to remove any
rights you would otherwise have in the software.  "You are not
required to accept this license, because you have not signed it" (note
that the GPL doesn't even suggest that clickwrap and shrinkwrap
mechanisms could be valid), but "nothing else grants you permission to
modify or distribute the Program or its derivative works.  These
actions are prohibited by law if you do not accept this License."

Without accepting the GPL, there  is  something that "grants you
permission" (or, from another angle, there is nothing that prohibits
you) to make ordinary uses of the software, including running it,
patching it, reverse engineering, disassembling, decompiling, publishing
benchmarks, and so on.  Daniel J. Bernstein has argued in support of
this idea (and against your position in general):

and elsewhere, although his position is mostly based on a particular
statute and his support for the legal reasoning in the court cases
that came out against the legitimacy of clickwrap and shrinkwrap

By contrast, the Microsoft EULAs claim that you are  not allowed to
use the program at all  unless you have agreed to the entire EULA.
I fondly remember that, not only is your only recourse if you disagree
a refund, but most Microsoft software users can't even obtain the

Microsoft saying that the GPL is  too harsh  or  too restrictive  is a
big joke.

Let's see:
                      Typical Microsoft EULA         GNU GPL

Use                   Yes, if you agree              Yes
                      (subject to some               (unrestricted)

Reverse engineering,  No                             Yes

Derivation            No                             Yes, if you agree

Distributing          No                             Yes, if you agree

Including             No                             Yes, if you agree
program in a
new work

Microsoft has no business saying that the GPL is too restrictive: from
a legal point of view, the GPL's permissions are a strict superset of
those granted by Microsoft's mass-market licenses.

The GPL's restrictions apply if you want to make derivative works.  On
the other hand, Microsoft's licenses  completely forbid  you to make
derivative works.  So if you make and distribute a derivative work of a
GPLed program, then (if the GPL is legally enforceable) you must publish
the source code for your changes, and cause it to be licensed to all
third parties, etc.  But if you make an distribute a derivative work of
a Microsoft program, then  you are an infringer of copyright  and
that's the end of the story; it's simply not allowed.

Microsoft does have certain OEM licenses, and would probably prefer
for the GPL to be compared to its OEM licenses rather than to its
EULAs.  The OEM licenses are more restrictive than the GPL in some
ways, and less restrictive in others; also, they may require royalty
payments, where the GPL never does.  I would make a more detailed
comparison, except that the OEM licenses all appear to be confidential!

If we compare the GPL to Microsoft OEM licenses, then the GPL is more
restrictive from the point of view of someone who wishes to keep
secrets, and the Microsoft license more restrictive from the point of
view of someone who wishes not to keep secrets.  This probably reduces
to the observation that Microsoft licensing and the GNU project's
licensing have somewhat different goals.

[snip interesting discussion of different types of scarcity]

Seth David Schoen <>  | And do not say, I will study when I
Temp.  | have leisure; for perhaps you will
down:   (CAF)  | not have leisure.  -- Pirke Avot 2:5