For Approval: Microsoft Permissive License

Sun Sep 30 22:14:48 UTC 2007

I have not stated anything about the validity of the BSD or Microsoft
licences. I have not said that the BSD approval must be resigned.

But the concern remains, and if Microsoft, that currently applies a MUCH
more severe policy to enforce the protection of its registered trademark
than the Berkeley University (because it is a private organization without
public founding, when the Berkeley University receives some public founding
or has some privileges that requires it to automatically concede some
additional rights to the public: here, the “public” term means the sector of
activities organized by the government or created by law which creates a
public domain; it does not designate the “public” term used in the
classification of organizations in stock exchanges, because Microsoft is
traded publicly is such stocks, i.e. within a market open to the public.)

The level of protection of trademarks (i.e. the maximum bounding of domains
where such exclusive protection is guaranteed by law) is relevant because it
defines if a simple nominative reference to a trademark by a third part is
“fair” or can be considered “abusive” by the trademark holder; the
delimitation between “fair” and “abusive” should not be so weak that it
could require the interpretation and a further decision by a judge (because
in this case, the most powerful defendant has much higher chances to win in
the trial, and the less powerful defendant will most often have to resign
immediately, as soon as it receives an threatening injunction by the largest
party.

The delimitation should then avoid any “implicit” reference to the unclear
term “fair”, but to the much more explicit terms “granted” and “not
granted”. This is normally the main reason why written and signed contracts
and licenses are created: it avoids weak interpretations by any party to the
contract of license or some other different interpretation by a “neutral”
third-party like a judge arbitrating some litigation between the directly
involved parties

Note that judges need to arbitrate not only between the involved parties,
but must also consider the public interest, if the result of the decision by
the judge will create a jurisprudence affecting the applicability of the
terms negotiated in other contracts or licenses (or other forms of
agreements), between other third-parties not currently directly related to
the litigation but that need to be defended indirectly (as part of the
“public” interested in such trial in which they can’t be represented);
that’s why trials between two direct parties involved in a litigation also
include a third one representing the public, defended by its own lawyers but
with costs supported by the public; this is also a good reason why the abuse
trials or juridical procedures is punishable by law, as this generates costs
for the public for its defence, i.e. costs for everybody not directly
involved in the litigation, but concerned by the jurisprudence that a public
and applicable justice decision will create).

The “public” interests, defended in a trial using governmental funding
(potentially large but not infinite!) is something that helps balancing the
difference of power between “large” and “small” parties (because the large
party also needs to defend its position face to the public), so that small
parties don’t necessarily need to resign (but they must evaluate if the
“public” third-party, defending itself only using the terms of existing
laws, without reference to the terms of private contracts or licences or
agreement in litigation, will help the small party defend its position; and
the small party must also evaluate the consequences of loosing the trial, if
the “public” does not want to defend its cause, as it may have to support
not only a significant part of the justice costs supported by its opponent,
in addition to the costs for its own defence, but also the costs supported
by the defence of the “public” interests, plus the possible fines that a
judge may decide against the looser for “abuse” of juridical procedures if
the small party was the initiator of the trial, a fourth supplementary risk
that may be easier to support by large parties than by small parties, where
the “public” does not care if the smaller party has to cease all its
activities due to the decision).

So effectively, in a litigation between a large organization and small
party, the “public” third-party in a trial still tends to defend the
interests of the largest party involved, as it minimizes the indirect
consequences for the “public”! In other words, the largest organizations
have the power to influence a lot the jurisprudence in their favour (and
that’s why they regularly abuse the justice system, and make large profits,
by forcing others to resign instead of defending their case in a trial). If
you are small, the only safe way to defend yourself against a large
corporation is to create a group action: that’s something that exists in US,
but still not in Europe where the largest organizations are constantly
abusing the legal systems. Instead, the smallest parties need to find an
association accepting to defend their cause, but the associations MUST also
collect individual proofs of concerns from each of their interested members.

I’ll take a significant example:

*	In a recent litigation (judged last year) between the three largest
French mobile phone companies and their consumers (related to abusive
billing practices), the consumers could not defend directly their cause, but
had to sign an individual agreement with the association defending their
cause, and to expose not only their evidences (proof of abusive billings,
copies of their contracts, proofs of payment
) but also making them become
DIRECT parties to the trial, even though they would not defend their case
themselves. So their individual proof of identity was needed, and the 3
major Telcos had to defend their case against only TENS OF THOUSANDS of
defendants (so the Telcos had the complete list of consumers), despite their
abusive contracts was affecting equally MILLIONS of customers.
*	And the result of the decision (in which the Telcos have lost, many
thanks to the judges for that!) did not affect the millions of customers
that were NOT defended by the “public” interest: it only created a
jurisprudence, and the millions of French mobile phone customers that did
not participate to the trial still need now to defend their case isolately
by starting once again a new juridical procedure based on this
jurisprudence. So now, if the other consumers do not start a legal action
within a limited time after the trial decision, all the past abuses by the
Telcos against them will become legal and non-refundable.
*	Such thing would not have happened if a group action had been
possible, in such a way that the “public” party would have been directly
involved as part of the group action, so that the consequence of the justice
decision would have been that ALL customers would have received the
compensations for the abusive billings made by the three major French mobile
Telcos.
*	Instead, after the trial, the government had to vote a law and force
these Telcos to extend the jurisprudence to all their customers for the
future.
*	But no retroactive compensation was possible for the past abuses by
the Telcos, that had abused their dominant position during many years (as
recognized by the justice decision, but not by the new law), despite of past
countless protests by consumers, and countless procedures in which they
could not defend correctly and they most often had to resign long before
waiting the decision

*	The collective juridical action by associations of consumers was
becoming urgently necessary last year, because the many individual actions
in which the consumers were not defending their case correctly (or could not
support the financial cost of their actions, to defend themselves correctly)
was progressively creating a dangerous jurisprudence in favour of the large
Telcos (notably because the French courts are notoriously flooded with many
cases that must be judged very fast after very long time waiting for the
decision); the jurisprudence created would have been tolerating the
countless “minor abuses” and transforming such “tolerance” into legality,
and source of profits for the largest Telcos, even if their behaviour was
clearly abusive and against existing laws!

Such concerns is not limited to Telcos, but to any large domain (generating
huge amounts of financial transactions or revenues) in which the market is
significantly dominated by a few major providers (Microsoft is in such a
position, worldwide, and it’s even very difficult now for a single
government to defend its position or the interests of their “public” (as
seen in US, where there are even conflicts of interests, and a powerful
lobbying of Microsoft in favour of those that can influence laws, against
the jurisprudence normally created in favour of the public).

As far as I know, the Berkeley University is not in such a position that
even the government cannot defend the public interests, or still help the
University defend their legitimate rights. The risks in a trial are much
lower, including for the University itself. The Berkeley University does not
play in the same stadium (or battlefield) as Microsoft (powerful enough to
defend its case and win easily against almost any single government, that
will most often resign!). Instead, the governments need to join their
actions (that’s why we see now legal actions against Microsoft being judged
in international Courts of justice, or why in US such trials at the state
level are failing or not applicable elsewhere, and are being driven at the
federal level and even the public party is campaigning for getting direct
help from more involved parties).

So the current very active protection of the Microsoft trademark by
Microsoft itself is something that should not be considered negligeable.
Things that may seem trivial to defend today, in a first approach, could
reveal to be extremely costly to defend later, and that’s why we should ask
to Microsoft to be extremely explicit in its licences about its intents. I
don’t think that requesting to Microsoft to include a clear statement about
the correct way to refer to its licence is something unreasonable, and if
Microsoft has difficulties to accept it, then some hidden intentions can be
feared and the licence should be perceived as potentially dangerous
(remember the public comments made by Microsoft supporters about the “viral”
nature of the GPL, incorrectly stating that the FSF had hidden intentions or
was stealing IP rights owned by others, or accusing it of supporting
socialism or leftist positions against freedom of market, when in fact all
the FSF goals were publicly disclosed and explained to who ever asked that
the GPL was not made to prohibit the commerce or to take the IP rights
detained by others without their explicit consent).

If we want “fair” competition, we do need that proprietary licences, as well
as “open” licences (approved by OSI) and “free” licences (compatible with
the GPL) get exactly the same very strong level of protection for the
clauses that are present in each of them,and that these clauses be equally
applicable. Nothing more, nothing less.

There’s little thing we can do for enforcing the precious “public domain”
(because it only exists “by default”, within the terms of locally applicable
laws but outside of the terms of any license or contract), except
campaigning in each country for protecting (or extending) the existing laws
that created and protected this public domain; so that it would benefit of
this legal protection (the public domain is also extremely precious because
it is the vehicle of most the humane culture, and transmits most of our
knowledge, and benefits collectively to the whole humanity for its education
and progress of civilisations, and also benefits to every commercial
organization that can use it equally).

Unfortunately, we’ve seen some countries recently starting to reduce the
field of the public domain causing major damages in the public and in
existing commercial organizations already using or depending of some parts
of it (now these are exposed to trials for infringements of various IP
rights, notably in Russia where such laws have been passed, even with some
retroactive effects!).

So even if a right is trivial to defend, because it is *currently* part of
some public domain conceded by law, and then considered implicit in a
license, it is not completely useless to reaffirm these rights in some short
clause of a license (even if the law changes, the granted right remains
unforceable); this costs nothing for the existing right holder according to
the existing law, so it’s not unreasonable to ask it (unless the right owner
has hidden intentions and wants to campaign later to change the existing
jurisprudence by initiating legal actions where it will be “testing” these
implicit rights, or wants to start lobbying at governmental level to change
the laws and in that case a public declaration about the intent of the
submitter is also not useless
)

  _____  

De : Chris Travers [mailto:chris.travers at gmail.com] 
Envoyé : dimanche 30 septembre 2007 21:18
À : License Discuss
Objet : Re: For Approval: Microsoft Permissive License

On 9/30/07, Philippe Verdy <verdy_p at wanadoo.fr> wrote:

Chris Travers [mailto:chris.travers at gmail.com] wrote:
> That is exactly what will happen if dislike of the source of a license is
a factor in its approval.

Here again you continue to misread what I said. The "dislike" of a source is

not addressed in what I said, I thought I had been clear enough. I just
spoke about the applicability of users' rights and obligations, i.e. the
existence of unwritten, unexplicited clauses in the license, that can 
severely weaken their applicability to users, i.e. (unwritten) *implicit*
rights and *implicit* requirements (that do exist just because one of the
parties may think that these rights or obligations are protected by their 
national law, or implied by the terms used in the licence, or by the actual
coverage of meaning of the term "licence").

 Do you think the OSI should rescind approval of the "New BSD" License which
has a similar clause? 

If not, why should it be OK in that license, but not in the MS-PL license?

Best Wishes,
Chris Travers

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