Interesting Microsoft license clause re open source

[Wendy Seltzer]

At 10:09 PM 06/25/2001 -0400, Lou Grinzo wrote:
>I don't doubt what you're saying--it's just the standard cost/benefit
>tradeoff we all face about a million times a day, in one form or another.
>
>My point is that MS has enough money and lawyers that they surely made this
>particular tradeoff in exactly this way, and I'm curious as to why they did
>it.  Put another way, does anyone really think that the extra cost (in
>either money or time) to make the license extremely clear would have been so
>much as a trivial burden to MS?  I don't.

But were they trying to make the license clear or to scare people away from 
using "virally licensed" code and development tools, when a clear license 
would have looked terribly overreaching?  Since I can't see how any third 
party could force MS to disclose its code (except perhaps as part of an 
antitrust or copyright misuse claim connected to this monstrosity or a 
license), I'm not sure that Microsoft had a point other than FUD.  I think 
they're using the license as just another opportunity to cast aspersion on 
open source.

I'm interested in the antitrust possibilities here, though.  Doesn't 
prohibition on use in conjunction with competitive products, where there's 
no additional purpose of keeping the source either available or secret, 
look like a clear restraint of trade, especially when they start naming Sun 
and Netscape?

--Wendy


>-----Original Message-----
>From: Ravicher, Daniel B. [mailto:DRavicher at brobeck.com]
>Sent: Monday, June 25, 2001 4:54 PM
>To: 'Lou Grinzo'; 'John Cowan'
>Cc: license-discuss at opensource.org
>Subject: RE: Interesting Microsoft license clause re open source
>
>
> > -----Original Message-----
> > From: Lou Grinzo [mailto:lgrinzo at stny.rr.com]
> >
> > But the more important issues, I think, is what's up with MS
> > and this "in
> > conjunction with" phrasing.  I can't believe that MS's
> > lawyers don't realize
> > how vague that statement is, which makes it sound suspiciously like an
> > attempt to intimidate people--i.e. "steer a wide path around
> > anything that
> > even hints at open or free software, or we'll darken the sky
> > with lawyers."
>
>In drafting contracts, there are two countervailing considerations: (a)
>spend the time and money now to hammer out every detail to set in stone the
>relationship with a corresponding reduction in the risk of incurring
>litigation costs in the future, vs. (b) use "fuzzy" language that saves time
>and money now with a corresponding greater likelihood of having to spend
>time and money later to litigate the details.
>
>You are right that broader language increases potential litigation risk to
>those who accept it, but this risk is nothing but another cost that may/
>should be considered when deciding whether to enter into the license.
>
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--
Wendy Seltzer -- wendy at seltzer.com
Fellow, Berkman Center for Internet & Society at Harvard Law School
http://cyber.law.harvard.edu/seltzer.html