For Approval: Microsoft Reciprocal License

Sat Oct 6 06:10:55 UTC 2007

Now what I discussed was not stupid: the licence explicitly states this
restriction in the list of grants:

(B) No Trademark License- This license does not grant you rights to use any
contributors' name, logo, or trademarks.

So this clarifies the licence about the condition of use of its name
containing the trademark “Microsoft”. The trademark remains protected,
except in the case of the restrictions of section 3 (as indicated), notably
the restrictions stated in (D), which does not cover the licence itself, but
may reference “Microsoft” in the copyright notice of the software, and (E)
which requires a verbatim copy of the licence:

(D) If you distribute any portion of the software, you must retain all
copyright, patent, trademark, and attribution notices that are present in
the software. (
)

(E) If you distribute any portion of the software in source code form, you
may do so only under this license by including a complete copy of this
license with your distribution (
).

This solves cleanly all possible misinterpretations, but explicitly allows a
single reference only for the purpose of respecting the copyright notices,
and your obligation to distribute the licence (but this does not permit you
to use the complete name of the licence for any other purpose.

However the last sentence of the licence (absence of warranty) is possibly
problematic: “The contributors exclude the implied warranties of (
)
non-infringement (
)” even though the users must still keep the name of
contributors in the attribution and copyright notice. So, even if Microsoft
signs the licence, and attributes itself as an author/contributor, Microsoft
may include some code in its distribution for which it has no right and
cannot legally grant a patent licence, and then Microsoft excludes itself
from any warranty if this is an infringement (except if laws are requiring
it), making the users fully liable for the infringement that may be claimed
by others when using the software.

May be the legal wording sentence at the beginning of this paragraph is
enough (“To the extent permitted under your local laws”), because almost all
countries are already protecting the copyrights legally so that all authors
are legally liable for what they create and publish. If some downstream user
is operating the software from within a country that is a party to the Bern
convention, then he is not liable for any infringement, because the initial
author is legally liable for the infringement (but not the mere users under
some reasonable conditions, such as being a valid licensee and respecting
the terms of the license).

We are not required to accept the infringement liability just because we
accept to become a licensee and use the software at our own risks (notably
because we may not even know that the software infringe some rights owned by
others than the contributors at the time we accept to become licensees). So
it remains the responsibility of each contributor to sign its contribution,
his signature asserting that he does not knowingly infringe some rights
owned by others.

BUT:

I am surprised that the licence does not require contributors to sign their
contributions. This means that if a user modifies the software, he may
distribute it as a derived work by just keeping all the existing copyright
notices and attributions, without even identifying what he did (his only
obligations is to provide “the source-code to that file” and the copy of the
licence, but nothing is said about the correct attributions. So a malicious
downstream user may corrupt the file and its source, without being
identifiable later, because only the original authors are cited in the
copyright and attribution notices.

Such provision is found within the GPL (which includes some wording about
keeping also the history and adding new records in the history, without
reattributing the modifications that any downstream user makes to the
original authors that did not make them).

One way to protect such such unwanted reattribution would be to use a
certified repository for the initial publishing, so that proof can be made
that the original author did not include the malicious code that may
constitute an infringement of either, rights owned by others, or, laws.

If this still does not work, then who is legally liable for the damages, if
an infringement is demonstrated? The downstream users (there may be a lot of
them, from which a right owner may then profit a lot!) or the original
author (this would be better justice, notably because the author may have
included the infringing code with the purpose of profiting of it later, for
example if the downstream users are some competitors: the original author
may include code that infringe the rights owned by other competitors: this
code is infringing because it is not covered by the licence grants
) This
could be used by an licensor to perform an attack against the rights owned
collectively by downstream users, creating havoc between them, to weaken
their rights and then allow the licensor to better profit from his own
rights not included in the licenced code !

Let’s just hope that the legal provisions at the beginning of paragraph (F)
will avoid this nightmare

Otherwise, signing the contributions should better be required by the
license. (Note that many open-source hosting sites require that contributors
authenticate themselves before committing any change in the project
repository, and these hosting sites like SourceForge are keeping a legal
dated archive of these signed commits, along with the dated proof of
identity they collected when the contributors authenticated themselves to
their site, so that each contributor can be individually proven as liable of
these infringing commits. This greatly helps the legitimate authors to keep
their project clean of malicious or infringing code without become liable of
it.) 

  _____  

De : Jon Rosenberg (PBM) [mailto:jonr at microsoft.com] 
Envoyé : mercredi 3 octobre 2007 05:36
À : license-discuss at opensource.org
Cc : Jon Rosenberg (PBM)
Objet : For Approval: Microsoft Reciprocal License

Microsoft is pleased to submit the Microsoft Reciprocal License to the OSI
for consideration as an OSI approved license.  This license contains the
same terms as the previously submitted Microsoft Community License, but has
been renamed for greater clarity, and resubmitted in accordance with OSI
guidelines.     Microsoft believes that this license provides unique value
to the open source community by delivering simplicity, brevity, and clearly
delineated reciprocal terms.

The three sections below provide the information required for the discussion
portion of the approval process.  We look forward to continuing to work with
the OSI and the open source community on this submission process. 

Jon Rosenberg

Director, Source Program

Microsoft Corporation

----------------------------------

Section  I:  Which OSI licenses are similar and why won’t one of those do
instead?

Although one can assess similarity of license terms in numerous ways, the
MS-RL has some similarities to the Mozilla Public License (V1.1).  However,
we sought to draft a license that is simple, short, and easy-to-understand.
In particular, the Mozilla Public License’s definitions of original code,
covered code, and modifications can be difficult to apply in practice, given
the many ways in which software can be distributed and linked together.  The
MS-RL provides a clear objective test of whether or not a derivative work
constitutes a modification of the original code.  

Section II: Compatibilities and incompatibilities with other OSI licenses:
Source code distribution breaks down into two areas: Relicensing of MS-RL
code and redistribution of MS-RL code with other code that is licensed under
a different license.

*     Can MS-RL code be redistributed under a different license?

 No.  The license states that “If you distribute any portion of the software
in source code form, you may do so only under this license
 ”  This
restriction is similar to the restriction in the Mozilla Public License that
states “You may not offer or impose any terms on any Source Code version
that alters or restricts the applicable version of this License or the
recipients' rights hereunder.”  The license explicitly prohibits relicensing
of the original licensed code under a different license, in whole, in part
or as part of a different piece of software.  

*     Can MS-RL code be redistributed in combination with other code that is
licensed under a different license?

As long as any files containing the original MS-RL licensed code are
redistributed under the MS-RL license, then the MS-RL  places no
restrictions on combining MS-RL code with other code that is licensed under
another license.  Any files containing any of the MS-RL licensed code must
be distributed only under the MS-RL license and not under any other license.
Licenses that prohibit the distribution of code under any terms other than
the terms of that license will not be compatible with the MS-RL.

Section III: The License:  A copy of the license is included below and also
provided as a .txt file attachment.

Microsoft Reciprocal License (MS-RL)

This license governs use of the accompanying software. If you use the
software, you accept this 

license. If you do not accept the license, do not use the software.

1. Definitions

The terms "reproduce," "reproduction," "derivative works," and
"distribution" have the same meaning here 

as under U.S. copyright law.

A "contribution" is the original software, or any additions or changes to
the software.

A "contributor" is any person that distributes its contribution under this
license.

 "Licensed patents" are a contributor's patent claims that read directly on
its contribution.

2. Grant of Rights

(A) Copyright Grant- Subject to the terms of this license, including the
license conditions and limitations in 

section 3, each contributor grants you a non-exclusive, worldwide,
royalty-free copyright license to 

reproduce its contribution, prepare derivative works of its contribution,
and distribute its contribution or any 

derivative works that you create.

(B) Patent Grant- Subject to the terms of this license, including the
license conditions and limitations in 

section 3, each contributor grants you a non-exclusive, worldwide,
royalty-free license under its licensed 

patents to make, have made, use, sell, offer for sale, import, and/or
otherwise dispose of its contribution in 

the software or derivative works of the contribution in the software.

3. Conditions and Limitations

(A) Reciprocal Grants- For any file you distribute that contains code from
the software (in source code or 

binary format), you must provide recipients the source code to that file
along with a copy of this license, 

which license will govern that file. You may license other files that are
entirely your own work and do not 

contain code from the software under any terms you choose.

(B) No Trademark License- This license does not grant you rights to use any
contributors' name, logo, or 

trademarks.

(C) If you bring a patent claim against any contributor over patents that
you claim are infringed by the 

software, your patent license from such contributor to the software ends
automatically.

(D) If you distribute any portion of the software, you must retain all
copyright, patent, trademark, and 

attribution notices that are present in the software.

(E) If you distribute any portion of the software in source code form, you
may do so only under this license 

by including a complete copy of this license with your distribution. If you
distribute any portion of the 

software in compiled or object code form, you may only do so under a license
that complies with this 

license.

(F) The software is licensed "as-is." You bear the risk of using it. The
contributors give no express 

warranties, guarantees or conditions. You may have additional consumer
rights under your local laws which 

this license cannot change. To the extent permitted under your local laws,
the contributors exclude the 

implied warranties of merchantability, fitness for a particular purpose and
non-infringement.

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