Microsoft's near-OSD-compliant shared source license

John Cowan cowan at
Fri Jul 4 20:42:56 UTC 2003

Karsten M. Self scripsit:

>     That you are not allowed to combine or distribute the Software with
>     other software that is licensed under terms that seek to require
>     that the Software (or any intellectual property in it) be:
>        - Provided in source code form.
>        - Licensed to others to allow the creation or distribution of
>          derivative works.
>        - Or distributed without charge.

This is the only version that makes the three points grammatically
parallel (provided, licensed, or distributed), and I believe that
it was the intended interpretation.

> Effectively, then, this is the anti-GPL license -- it's a license which
> allows for use and modification, but explicitly prohibits use in
> copylefted software.

I agree.

> The question then becomes:  is this discrimination against a group or
> field of use?  Or is it along the lines of the incompatibility of the
> old-style BSD (and current Apache) license whose advertising clause
> conflicts with the GPL?

I believe it falls into the second category.  To bring it under the
first requires us to construe "programmers who employ GPLed software
components" as a group, or "constructing software using GPLed
software components" as a field of use.  If we can do that, we can
convict the GPL on the same grounds as discriminating against
programmers of Apache modules, or the creation of Apache modules.

To me this license looks free and open source and incompatible with the
GPL.  The only point that troubles me is #9:

# That the patent rights, if any, granted in this license only apply to
# the Software, not to any derivative works you make.

which suggests that if you need a patent license to use the Software, and
your derivative work requires the same patent license for the same reason,
it doesn't get one.  I suspect this is basically sloppy drafting, and
what they really want to exclude is this:

1) You incorporate a trivial amount of the Software, just so you can
   claim you are making a derivative work;

2) Your code does something that is subject to a patent claim;

3) You say you have a license to use the patent because your work is a
   derivative work, even though you are not (usefully) incorporating
   the part of the Software that exercises the patent.

John Cowan  jcowan at
"The exception proves the rule."  Dimbulbs think: "Your counterexample proves
my theory."  Latin students think "'Probat' means 'tests': the exception puts
the rule to the proof."  But legal historians know it means "Evidence for an
exception is evidence of the existence of a rule in cases not excepted from."
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