For Approval: Microsoft Permissive License

[Chris Travers]

Since the board is still considering this license, I wanted to provide some
information from my research that might help with this decision.

One of the main issues people have on this list is the idea that other
existing permissive licenses allow sublicensing.

I am not a layer, but I believe that this is wrong as a matter of intent
licenses such as the BSD-licenses and the that it is also wrong as a matter
of law.  In fact, most permissive licenses do not allow for sublicensing and
force the licnese to follow the original copyrightable elements (including
but not limited to code).

If sublicensing was allowed, I could take OpenBSD, and add the following
header to the top of every file:

"This file is sublicensed by Chris Travers under the terms of the GNU
General Public License version 3 with no license exceptions or permissions
beyond those granted in that license.  Unless you receive this software
through other means, you are legally obligated to follow the terms of that
license in any derivative works you create."

I think we all know what Theo de Raadt's response would be....  I have
verified with other BSD-licensed projects that this would be similarly
unacceptable to them as well.

Note that this creates a copyright license by virtue of sublicensing even
though I am not claiming copyright to the works.  As I have been in touch
with various authors of BSD-licensed code, they have all told me that their
intention is to allow people to enforce their own copyrights over their own
contributions, not relicense existing code.  In essence the intent is
similar to that spelled out in the MIT/X.org/ICU license:  "Permission is
hereby granted, free of charge, to anyone who obtains a copy fo the
software...."  The author/copyright owner grants permission to the recipient
regardless of the path the code takes in getting to him or her.

Nonexclusive copyright licenses are generally indivisible as a matter of law
(again, IANAL but this is referred to as "settled law" in every source I can
find).  This means that a nonexclusive license does not carry an implicit
sublicense agreement.  With the exception of the MIT License (which contains
a sublicense clause which is in my lay opinion probably moot for the reasons
outlined above), permissive licenses generally do not include a sublicense
right and instead offer a direct grant of rights from the author to any
recipient to use source code released by him or her under that license.

It should not be difficult to grasp that there is a difference between
"sublicensing" and "using with permission in one's own works."  These are
quite different.  The permission grant in the BSD-type licenses does not
allow sublicensing, but it does allow for people to prepare derivative works
and release those under other licenses.  THis does *not* however mean that
the preparer of the derivative work gets any claim to copyrights necessary
to change the license on the code originally licensed under the BSD livense.

Best Wishes,
Chris Travers
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