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<DIV>Thanks for the introduction Chris. I think most of the issues raised
in this thread are addressed in a response I just posted to another
thread.</DIV>
<DIV><BR><BR></DIV>
<P><FONT size=2><SPAN
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Counsel<BR></SPAN><B><SPAN
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LLP</SPAN></B></FONT><SPAN
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<P><FONT size=2>-----Original Message-----<BR>From: Chris Fagan [<A
href="mailto:chrisfa@microsoft.com">mailto:chrisfa@microsoft.com</A>]<BR>Sent:
Wednesday, August 22, 2007 4:21 PM<BR>To: Stephen Walli;
license-discuss@opensource.org<BR>Cc: Michael R. Bernstein; Chris Travers;
Thatcher, Jim E. (Woodcock Washburn)<BR>Subject: RE: For Approval: Microsoft
Permissive License<BR><BR><BR>All,<BR>I appreciate the dialogue that’s occurred
during this submission process, and it’s been exciting and educational to
participate in. I’ll continue to engage (as will other folks from Microsoft)
around the history of the MS-PL and MS-CL. In other cases, however, IANAL. To
help with legal related questions, I’m cc’ing Jim Thatcher of Woodcock Washburn
LLP for his input. Jim is an experienced IP lawyer and former software
engineer who will be able to help me respond to some of the licensing questions.
I’m hopeful Jim’s thoughts can help in working through issues raised in this and
other threads.<BR><BR>Chris<BR><BR>-----Original Message-----<BR>From: Stephen
Walli [<A
href="mailto:stephen.walli@gmail.com">mailto:stephen.walli@gmail.com</A>]<BR>Sent:
Tuesday, August 21, 2007 11:44 AM<BR>To: license-discuss@opensource.org<BR>Cc:
Michael R. Bernstein; Chris Travers<BR>Subject: Re: For Approval: Microsoft
Permissive License<BR><BR>When I worked at Microsoft, Legal and Corp. Affairs
beat a really simple rule into people (especially program managers trying to
be<BR>helpful):<BR>The license says what the license say. Your job is not
to interpret the license for anyone.<BR><BR>So yes, it's pretty funny that we're
all interpreting here as non-lawyers. (IAANAL.) Lawyers are also notorious
for not wanting to set up a body of competing text to a license or
contract.<BR><BR>However, that means there's a specific problem in the context
of this discussion on this list, especially with JonR's original statement that,
"Microsoft believes that this license provides unique value to the open source
community by delivering simplicity, brevity, and permissive terms combined with
intellectual property protection". If the Microsoft lawyers presently
responsible for these licenses are not DIRECTLY involved in the discussion about
the outcomes they're considering (or trying to prevent), then you will approve
the license you deserve.<BR><BR>As much as I respect JonR and Bill Hilf, they
are not lawyers either. For this discussion to be valuable, and for the
resulting licenses to be useful and not merely long term sources of confusion,
you need to deliver a set of questions to Microsoft and get the answers OR new
license text under a new revision number if they prefer not to create competing
interpretive text from the lawyers. The Microsoft lawyers need to be part
of the discussion.<BR><BR>The license's simplicity and brevity are great,
but to fulfill those purposes developer readers of the license must
not be [unintentionally] mislead by terms of art. I remember in early
discussions around similar license attempts inside Microsoft, that as a casual
reader with no formal legal training I completely misunderstood "distribute any
portion of the software" with regards to how I needed to think about derivatives
and the meaning of "the software". It was explained to me by the lawyers
that "the software" had clear specific meaning. Apparently
not.<BR><BR>pax<BR><BR>On 8/21/07, Chris Travers <chris.travers@gmail.com>
wrote:<BR>><BR>><BR>> On 8/21/07, Michael R. Bernstein
<michael@fandomhome.com> wrote:<BR>> ><BR>> ><BR>> >
Hmm. IANAL, but this seems at least a somewhat idiosyncratically<BR>> >
narrow interpretation of 'you may do so only under this license'.<BR>>
><BR>> > You are grouping the words in one way, but ignoring the
groupings<BR>> > 'may do so' and 'only under', that produces the
corollary<BR>> > interpretation 'you may not distribute under any other
license'. If<BR>> > this is NOT an intended interpretation, rewording 3D
(and the MS-CL<BR>> > 3E) to exclude that interpretation should be
relatively simple.<BR>><BR>> You know, this is pretty funny. IANAL,
neither are you. We are<BR>> arguing over legal theory here and there
is nobody chiming in with who<BR>> is willing to correct.<BR>><BR>> The
legitimate question of law here is whether any copyright license<BR>> permits
distribution only under the terms of the license provided that<BR>> copyright
is not abused in the process etc. My argument is that the<BR>> same
wording is implied in the combination of the BSDL *and* US<BR>> Copyright
law. But again, IANAL and so neither of us are likely to be<BR>> able to know
for certain whether we are right until we buy appropriate<BR>> legal opinions
from duly licensed vendors of said opinions ;-)<BR>><BR>> > BTW, still
haven't seen any statement from Bill Hilf or Jon<BR>> > Rosenberg as to
whether 3D (or indeed the license as a whole) is or<BR>> > is not intended
to exclude the use of other licenses for<BR>> > distribution in source
form.\<BR>><BR>><BR>> The question is: does it exclude other
licenses for the work as a<BR>> whole? For derivative portions?
etc. Provided no other license<BR>> compatibilities exist (let us leave
the GPL v3 in part because there<BR>> are some oddities that make me
unsure about whether the licenses are<BR>> compatible or not in corner cases
due to differences in definitions).<BR>><BR>> > > > See, I read
3D as an exception or condition to 2A, effectively<BR>> altering<BR>> >
> > the meaning of 2A to 'any derivative works except in source<BR>>
> > > form'.<BR>> > ><BR>> > > That would be
plausible if 3D mentioned derivative works, but it<BR>> doesn't.<BR>> >
> It speaks of the original software (or parts of it) only.<BR>>
><BR>> > Hmm. Well, OK. Again, IANAL, but that seems... wrong
somehow.<BR>><BR>><BR>> I am not so sure. Is "the software"
limited to the original copy? I<BR>> don't see it defined in the
license anywhere, and so I would think<BR>> that this only applies to
original versions of the source.<BR>><BR>> To back this definition, I
would note that the MS-CL *does* at least<BR>> attempt to extend this to
changes made to the software specifically by<BR>> requiring that files
containing any portion of the software must be<BR>> under the same
license. This is GPL-incompatible because the GPL does<BR>> not permit
any further restrictions, such as preventing the mingling<BR>> of code under
incompatible licenses in the same physical file. If<BR>> this was the
means, why not include such a clause in the MS-PL as<BR>> well? It
seems to me therefore that changes to the software are not<BR>> necessarily
required to be under the license.<BR>><BR>> Any comment from MS on this
interpretation?<BR>><BR>> Best Wishes,<BR>> Chris
Travers<BR>><BR><BR><BR>--<BR>mailto:
stephen.walli@gmail.com<BR>mobile: +1 425 785 6102<BR>skype:
stephen.walli<BR>IM: stephenrwalli at
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more unto the breach")<BR></FONT></P></BODY></HTML>