Questions about EULA with Excluded Licenses clause

[Dean Brettle]

Hi all,

Joe Audette, author of an open source portal application (see
mojoportal.com), is looking for help determining whether he can use MS'
Enterprise Application Blocks (EAB) in mojoPortal.  Various components
of mojoPortal use the CPL, LGPL, and X11-style licenses, though Joe is
considering switching the CPLed code to LGPL or an X11-style license.  

The EULA for EAB can be found at:

http://msdn.microsoft.com/practices/AppBlocks/default.aspx?
pull=/library/en-us/dnpag2/html/pageula.asp

It contains the following explicit anti-copyleft clause 1.f.(1):

<quote>
No Excluded Licenses. Your license to the Solution (or any Microsoft
intellectual property associated with it) does not include any right to
(a) create derivative works of the Solution in an manner that would
cause the Solution (or derivative work thereof) in whole or in part to
be subject to any of the terms of an Excluded License or (b)
redistribute the Solution (or derivative work thereof) in any manner
that would cause the Solution (or derivative work thereof) to become
subject to any of the terms of an Excluded License. "Excluded License"
means any license that requires, as a condition of use, modification, or
distribution of software that is subject to the Excluded License, that
such software or other software combined or distributed with such
software be (x) disclosed or distributed in source code form, (y)
licensed for the purpose of making derivative works, or (z)
redistributable at no charge.
</quote>

Does that clause prohibit creating a program which links to both EAB and
LGPLed libs?  It seems to me that it can be read that way if the
(dynamically) linked program is considered a derivative work of EAB,
because the derivative work would then be covered, in part, by an
Excluded License (the LGPL).  Is that right?

As a separate question, is the EULA an Open Source license?  The above
clause in and of itself wouldn't seem to preclude that -- it just makes
it copyleft-incompatible like many other licenses.  The EULA explicitly
permits the creation and distribution of derivative works.  The only
thing that worries me is that it doesn't explicitly allow redistribution
under the same license.  All it says is that you must "include the
following copyright statement: Contains software or other content
adapted from Microsoft Enterprise Library. Original Enterprise Library ©
2005 Microsoft Corporation. All rights reserved."  Does that mean that
Joe can modify and redistribute EAB, but his users and other developers
could not?  If so, it's obviously not OSD-compliant.

Cheers,

--Dean

PS. The thread where this discussion originated is at:

http://www.mojoportal.com:8046/BlogView.aspx?
pageid=2&ItemID=166&mid=19&pageindex=

In it, I give Joe my opinion on some other licensing issues as well.
If anyone has a few minutes, I'm sure Joe would appreciate a second
opinion on those matters.