For Approval: Microsoft Reciprocal License

[Chris Travers]

On 10/5/07, Philippe Verdy <verdy_p at wanadoo.fr> wrote:
>
>  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 (…).
>

I am not quite sure what you are looking for permission to do.  I would
think that if Microsoft releases the license, and you copy it verbatem, that
this is not only fair trademark use (as in the statement that a given file
is governed by it), but by including the license in your file, you are not
infringing on any trademarks in any way I know (IANAL).

Look at it this way, suppose I buy a new Toyota Prius.  After a while, I
decide to sell it and buy a hybrid from Honda.  Toyota has no basis in
asking me to remove their trademarks from the car they manufactured just
because I want to resell it.  If your country is *that* insane as to allow
this sort of thing.....  The Microsoft Reciprocal License you include is the
one Microsoft released, therefore no trademark infringement.

Now, this would be an issue if you wanted to modify the license text.  But
in that case, I think that trademark would be the least of your worries.

As trademark attorneys from the EU have pointed out, your argument as you
state it does not apply in Europe.

As was politely pointed out to me by Mr Tiemann in the GPL v3 discussion,
the specific nature of regulatory regimes in various countries is beyond the
scope of inquery relating to the approval of licenses (hence the GPL
antitivoization clause, even if it effectively prevents manufactures from
using the software in certain forms of firmware, does not violate the OSD).

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.
>

Suppose Microsoft were to release code under the Apache, BSD, CPL, and GPL
v3 licenses.  Would that be any different?  Should WIX be considered to be
less open source just because Microsoft released it (under the CPL)?

Is this a referendum on Microsoft?  Or a referendum on the license?

If it is a referendum on the license, then the question  of Microsoft's
behavior is utterly irrelevant.  If it is a referndum on Microsoft, then I
am sure many of us would be perfectly happy to turn any submission by the
FSF into a referendum on them.  We owe it to all submitters to pursue some
guidelines of acceptance evenhandedly and subject to the same scope.

Best Wishes,
Chris Travers
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