Interesting Microsoft license clause re open source

[Lawrence E. Rosen]

I'm confused by the various answers people gave to this question:  

> > Do you know anyone who has _negotiated_ with Microsoft over 
> > the terms of the 
> > EULA? Personally, and IANAL, I don't consider the EULA to be 
> > a contract. I 
> > have not agreed to it. I have not signed it. I have not given 
> > my verbal "OK" 
> > to anyone. The courts are still out on the validity of 
> > shrink-wrap and 
> > click-through. 
> > 
> > Just because Microsoft says people are under an agreement 
> > does not make it 
> > so. I've bought the software, and along with that purchase 
> > came the rights to 
> > use that software. So long as I don't distribute it, publicly 
> > perform it, or 
> > create derivations of it, I can do whatever I want. Including 
> > using it as a 
> > tool in conjunction with Open Source tools.

First, you will almost certainly be held to the reasonable terms of a
shrink-wrap agreement accompanying any of the common, widely-available,
commercial software packages.  Nobody on license-discuss can claim to be
ignorant of software licenses and pretend to be a babe-in-the-woods when
it comes to accepting software under such licenses.  I think it is
foolhardy for anyone here to count on a court saying that shrink-wrap or
click-through licenses are unenforceable.  (It may happen; I just
wouldn't bet MY money on that wish!)  Indeed, we in the free and open
source community want such licenses -- our licenses -- to be
enforceable!

Second, the fact that you haven't "negotiated" the terms of such
licenses probably only means that *unreasonable terms* of such licenses
are unenforceable.  (For those of you who are lawyers, I'm referring to
the effect of unreasonable terms in contracts of adhesion.)  What terms
are "unreasonable" is subject to court battle.  It is safest to start
from the assumption that most terms are reasonable.  The burden is on
the challenger to prove that a contract term is unreasonable.  

Finally, would it be unreasonable to have a term in a license that says
you can't "use" a software tool "in conjunction with Open Source tools?"
Probably.  But *use* of software is usually not restricted by common
shrinkwrap licenses.  I don't think that's what Microsoft's EULA says.
Please read their license carefully.  I quote it below, with specific
words highlighted with "***".  

*************************** LICENSE QUOTED BELOW

(c)   Open Source.  Recipient’s license rights to the Software are 
conditioned upon Recipient (i) not ***distributing*** such Software, in
whole or 
in part, in conjunction with Potentially Viral Software (as defined
below); 
and (ii) not using Potentially Viral Software (e.g. tools) to ***develop

Recipient software which includes the Software***, in whole or in part.
For 
purposes of the foregoing, “Potentially Viral Software” means software
which 
is licensed pursuant to terms that: (x) create, or purport to create, 
obligations for Microsoft with respect to the Software or (y) grant, or 
purport to grant, to any third party any rights to or immunities under 
Microsoft’s intellectual property or proprietary rights in the Software.
By 
way of example but not limitation of the foregoing, Recipient shall not 
***distribute*** the Software, in whole or in part, in conjunction with
any 
Publicly Available Software.  “Publicly Available Software” means each
of 
(i) any software that contains, or is derived in any manner (in whole or
in 
part) from, any software that is distributed as free software, open
source 
software (e.g. Linux) or similar licensing or distribution models; and
(ii) 
any software that requires as a condition of use, modification and/or 
distribution of such software that other software distributed with such 
software (A) be disclosed or distributed in source code form; (B) be 
licensed for the purpose of making derivative works; or (C) be 
redistributable at no charge.  Publicly Available Software includes,
without 
limitation, software licensed or distributed under any of the following 
licenses or distribution models, or licenses or distribution models
similar 
to any of the following: (A) GNU’s General Public License (GPL) or 
Lesser/Library GPL (LGPL), (B) The Artistic License (e.g., PERL), (C)
the 
Mozilla Public License, (D) the Netscape Public License, (E) the Sun 
Community Source License (SCSL), and (F) the Sun Industry Standards
License 
(SISL).

*********************END OF QUOTATION

We should fight against the Microsoft license, but not waste our time
fighting against scarecrows that are misquotations of the license.  

As an aside, I'm not sure that the Microsoft EULA provision stating that
your license rights are conditioned on your "not using Potentially Viral
Software (e.g. tools) to develop Recipient software which includes the
Software, in whole or in part," is enforceable as written.  The
copyright law prohibits the making of copies and derivative works, and
distributing same, but it doesn't prohibit use.  Indeed, the copyright
law expressly states that "it is not an infringment for the owner of a
copy of a computer program to make or authorize the making of another
copy or adaptation of that computer program provided: (1) that such a
new copy or adaptation is created as an essential step in the
utilization of the computer program in conjunction with a machine and
that it is used in no other manner."  17 USC §117.  

On the other hand, the EULA prohibition on *distributing* Recipient
software "which includes the Software" created in this way, or "in
conjunction with Publicly Available Software," is probably enforceable
under copyright law.  The right to distribute is an exclusive right of
the copyright holder.

I do not, by these comments, intend to indicate approval of the
Microsoft EULA.  

/Larry Rosen
650-216-1597
lrosen at rosenlaw.com
www.rosenlaw.com