License compatibility of MS-PL and MS-CL (Was: (RE: Groklaw's OSI item (was: When will CPAL actually be _used_?))

Chris Travers chris at
Wed Aug 29 21:00:15 UTC 2007

Matthew Flaschen wrote:
> Chris Travers wrote:
>> Ok, so if we take my second hypothetical and state that you must
>> identify code which you are only using by permission and don't have
>> copyright claim to (itself), then how is this different?
> Even though you don't have copyright claim for this tweaked BSD code,
> nothing in "tweaked BSD" prevents you from sublicensing under the GPL.
>   In effect, you are just preserving the license on those chunks of code
> since you are
>> announcing that they are copyrighted elsewhere and used with permission
>> which has been granted to the public.
> You are making it very clear which parts are tweaked BSD, but that
> doesn't mean tweaked BSD code can't *also* be GPL.

How does the GPL effectively alter what you can do with the code?  If it 
doesn't alter it, isn't the point moot?

>> In short you are saying, "I don't own this code and cannot control what
>> you do to it.  The author has given a public license to the code.  See
>> the top of the file for details."
> It might be better if you reply with a full license, since BSD is short
> and you've made so many changes.
Ok, modified based on the OpenSource.Org version:

<OWNER> = Regents of the University of California
<ORGANIZATION> = University of California, Berkeley
<YEAR> = 1998

In the original BSD license, both occurrences of the phrase "COPYRIGHT 

Here is the license template:

Copyright (c) <YEAR>, <OWNER>

All rights reserved.

Redistribution and use in source and binary forms, with or without 
modification, are permitted provided that the following conditions are met:

    * Verbatim Redistributions of source code must retain the above
      copyright notice, this list of conditions and the following
    * Modified Redistributions of source code must retain the above
      copyright notice, this list of conditions, and the following
      disclaimer.  In addition, they must also identify which sections
      of code are unencumbered by copyrights other than the author's and
      state that the author has granted this license to those sections
      of code.
    * Redistributions in binary form must reproduce the above copyright
      notice, this list of conditions and the following disclaimer in
      the documentation and/or other materials provided with the
    * Neither the name of the <ORGANIZATION> nor the names of its
      contributors may be used to endorse or promote products derived
      from this software without specific prior written permission.

>> This is, of course, assuming that the MS-PL does not lay claim to any
>> derivative or collected works and that "the software" means "the
>> accompanying software."
> But this includes "the accompanying software" when it is part of a
> derivative work.
Is the BSDL not in effect for the accompanying software when it is part 
of a derivative work?  The only difference is that once someone else 
starts altering the files, you have no safe way of knowing whether it is 
safe or not to use.
>> I am not sure.  In this example, perhaps with some slight rewording, I
>> have effectively prevented sublicensing of the code itself
> *No*, you haven't done so effectively.  This has to be done clearly,
> either by saying something like, "Sublicensing is not allowed" (GPLv3)
> or "you may do so only under this license" (MS-PL)
Ok. here is my view of the sublicensing issue and why it doesn't apply 
in this case.  In a literary work, an author may grant a publisher the 
right to sublicense the work.  This means that the publisher would now 
be able to grant additional permissions to third parties.  In most 
cases, the BSDL code has been released publicly and this license granted 
to the public as a whole.  In short putting it under the GPL is 
redundant and moot (grants no further permissions nor takes away any).

>   I can do this without
>> including "only" in the license, and I can do this using *only*
>> attribution requirements and legal notices.
>> The reason is that my specific code is *only* under licenses I grant it
>> anyway.
> But you can give permission to sublicense.
Define sublicense.  I have effectively prevented any other licenses from 
altering exactly what you can do with the code.  Is there another 
definition of sublicense I should be aware of?
>> The reason is that my code copyrights can't be enforced by those who
>> alter it anyway.
> Correct.  I can't enforce copyright on your code; I *can* sublicense it,
> and enforce copyright on my own code in the derivative work.
>> 2)  Is this functionally different than the MS-PL (assuming that "the
>> software" only applies to the source code of "the accompanying software"
>> and not to copyrighted elements of that code present after modification).
> Copyright elements of /which/ code present after modification?
Copyrighted original elements of the MS-PL code.

For example, suppose I take MS-PL code and the internals of every 
function but leave the overall structure of the code intact (ordering 
and selection of each function and which file it belongs to).  One might 
argue that this is a derivative work because the ordering of the 
functions in the code is expressive.  Does the MS-PL require that these 
elements remain under the MS-PL?  Is one required to catalog them?  If 
interpreted this way, the license could have no differences in effect 
from the MS-CL...

IANAL, etc.

Best Wishes,
Chris Travers
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