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Microsoft EULA stokes crusade
Microsoft's new crusade against licenses that enforce source-code sharing has reached the
EULA of their Mobile Internet Toolkit. It even disallows the use of any "Publicly Available Software" tool in the production of software using this SDK. This seems to be a very wide ranging restriction applying to compilers (gcc), editors (vim, staroffice), filesystems (backup on linux server), web-browsers (mozilla logging into some online tool provider), Java (sun's virtual machine). The licenses covered include: the GPL and LGPL, the Artistic License (e.g., PERL), the Mozilla Public License, the Netscape Public License, the Sun Community Source License (SCSL), and the Sun Industry Standards License (SISL). Is this legal? Thanks to Jonathan for the link. Update: 06/26 05:42 PM by S : Here's a
legal opinion on the matter.
WARNING ... Anyone under the age of 18 or living in a legally-challenged country should either close their eyes or emigrate ....
GPL - virgin code but prepared to be free and easy
LGPL - understands cohabitation but doesn't want to touch the last base
BSD - bisexual and willing to go either way
MIT - has condom ready as anti-warrenty against the spread of aid
APSL - quite prepared to lend a dildo to help fuck up the partner
SCSL - wears a chastity belt so suitors can check in but not out
EULA - bend over, grab ankles, and prepared to be screwed
MSFU - when do you want to be gang-banged today?
But when has this ever happened? When has any open source software "created obligations" for the maker of a proprietary piece of software, or "granted to any third party any rights to or immunities under" the original maker's intellectual property rights?
An example of this would be if you marketed and sold proprietary software, and one day someone knocked on your door and said, "I'm sorry to tell you this, but someone has just made your software part of the Emacs distribution. Because Emacs is licensed under the GPL, that means you must provide us with the source to your proprietary software right now, or we'll sue."
This is nonsense, of course -- it's completely backwards from the way things work. A public license may preclude the use of restricted-license software in public-licensed work, but it won't try to force a restricted license to be treated as public. I really don't understand what Microsoft is trying to protect itself from. The only way that a public license would obligate Microsoft in any way would be if Microsoft were to try to use a public-license software program in one of their products.
Actually, no, I know exactly what Microsoft is doing: trying to drive a wedge between Microsoft products and open-source projects. Microsoft is hoping to corral corporate America into going exclusively with Microsoft software, and to require them to keep away from open source.
I hate the term 'Viral Software' as applied to open-source licenses, by the way.
That EULA says that the GPL requires separate works distributed with GPL software to be GPL'd, which is false. Microsoft itself sells software that includes GPL tools.
I hate the term 'Viral Software' as applied to open-source licenses, by the way.
The please, please don't use the term. It is not only a negative connotation, it is entirely wrong, a denigrative label applied to the GPL back during the early BSD vs GPL flamefests and rebutted very thoroughly in those threads (search groups.google.com for gpl bsd license if you're interested in dredging up old grudges). Since those early, volite days both RMS and the BSD folks have chilled out quite a bit and done as much as they could to reconcile their differences, and to respect those differences where reconciliation was not possible. This includes the changes to the BSD license making it GPL compatible as well as the recent endorsement by the Free Software Foundation for releasing the ogg/vorbis specification under the BSD license (to facilitate widespread implimentation in embedded hardware. think: portable ogg/vorbis players).
The GPL is not a virus, it is a vaccine, an innoculation against later abuse of your code by having someone, such as Microsoft, take your hard work, incorporate it into a proprietary product which is then extended and kept closed, marginalizing your project in the process.
The BSD license lacks this protection, but it does have an advantage in that it more straighforwardly allows code to be (re)implemented in hardware and combined with other proprietary works where it makes sense. It is obvious to all but the most zealous that both licenses have their place, and are appropriate in some situations and inappropriate in others.
Freedom is important, and in my opinion today's climate, as epitomized by the anti-freedom dishonesty and FUD Microsoft and its lackeys are spreading, we need all the innoculation against abuse we can get. That is why I prefer the GPL in most instances to the FreeBSD license, and why I based my own Free Media License on aspects of the GNU GPL (and GNU FDL).
Don't kid yourselves. We may not think of this as a war, and certainly if we take the rhetoric of the Microsoft lurkers in the crowd here and at K5 seriously we will continue to not think of it as a war, but make no mistake about it: Microsoft considers it a war and they will not stop until our freedom to use, modify, copy, and distribute the software we write is gone. Either through legal maneuvers, or by cutting us off from developers, users, and (perhaps most importantly) hardware manufacturers. This is a battle for our very freedom, and we should be neither complacent nor shy in informing others of exactly what is at stake.
The Future of Human Evolution: Autonomy
Recipient's license rights to the Software are conditioned upon Recipient (i) not distributing such Software, in whole or in part, in conjunction with Potentially Viral Software (as defined below); and (ii) not using Potentially Viral Software (e.g. tools) to develop Recipient software which includes the Software, in whole or in part. For purposes of the foregoing, "Potentially Viral Software" means software which is licensed pursuant to terms that: (x) create, or purport to create, obligations for Microsoft with respect to the Software or (y) grant, or purport to grant, to any third party any rights to or immunities under Microsoft's intellectual property or proprietary rights in the Software.
... but no 3rd party can change M$ licencing. Period. No one can nullify the original M$ licencing terms by re-releasing under their own licence, so it's a completely mute point. A red herring.
... honest.)
They are deliberately trying to cloud the issue. They say that they don't want you to give away any of Microsoft's rights or try to put Microsoft under any legal obligations by distributing their SDK DLLs with "Potentially Viral Software"
But then they go on to take great zeal in knocking down the straw-man they just constructed:
By way of example but not limitation of the foregoing, Recipient shall not distribute the Software, in whole or in part, in conjunction with any Publicly Available Software. "Publicly Available Software" means each of (i) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g. Linux) or similar licensing or distribution models; and (ii) any software that requires as a condition of use, modification and/or distribution of such software that other software distributed with such software (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge. Publicly Available Software includes, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL), (B) The Artistic License (e.g., PERL), (C) the Mozilla Public License, (D) the Netscape Public License, (E) the Sun Community Source License (SCSL), and (F) the Sun Industry Standards License (SISL).
Kinda like the Allchin, Balmer and Gates rants: All we want is for publically funded development to not be released under the GPL - not like that *ever* happens - but now we'll use that as a segue into a reant on the evils of the GPL.
They are really pushing their luck, obligating people to not use a competitiors dev tools (emacs, gcc etc.) in order to use their SDK (which is often needed to develop apps for their OS) sounds like leveraging their monoploly to squash competition and playing dumb about it (Huh? We just didn't want other people to take away our licencing rights
- bridgette
Rainman, sitting at a table. "Must compile code. Used NT to write it. NT has open sourced BSD networking code in it. Can't compile code. Can't compile code. Definitely can't compile code."
"Potentially Viral Software"? You can't BUY FUD like that!
icqqm [ICQ:11952102]
Well, yes, they can probably put whatever they want in it. I've seen EULA's that literally say they get your first born. That's not the interesting question. The question is-- what will actually hold up?
EULA's have severe limits. In Vault v. Quaid, it was held that an EULA can't infringe on federally protected consumer rights, such as noninfringing use, reverse engineering, and so on.
I found a rather interesting article dealing with copyright law vs. shrinkwrap licenses here. It's worth reading, since IP and EULA's seem to come up here quite often. It doesn't have an immediate interpretation of the current situation. However, it is evident that typically courts agree with the notion that EULA's cannot be used to artificially block legitimate competition, since that runs entirely counter to the purpose of the copyright laws they're predicated on.
Licenses are fun. Around 1995, I filled in the warranty cards from several products and sent them to the respective publishers with a license offer. The license offered my consideration of products or services they wished to advertise to me in exchange for their agreement not to send me junk mail more than once a year. The company was to indicate its agreement to the license by using the two-letter code on the warranty card in the address of mail sent to me.
The warranty card was clearly marked in red that use of the two-letter code indicated agreement to the license. The license contained some additional terms. Some of them specified payments for exceeding the junk mail threshold or sharing my personal information. One of the terms was that any future software of the publisher I acquired was transferred to me subject only to copyright law and not any license.
Among other publishers, I sent one of these offers to Microsoft. They used the two-letter code to send me mail.
Licenses are fun.
A Simplified EULA
By Reading this license you agree that Microsoft Corporation does not want to be part of the Mobile Internet Market. You Furthermore agree that you do not wish to uuse this software. You must return this software for a refund.
134340: I am not a number. I am a free planet!
to qoute a comment from k5:
Here is the relevant Open Source section. Please note that "The Software" referrs to Microsoft's SDK, and will be highlighted in bold text.
While that may at first appear very drastic, one must consider what is being said: You cannot distribute the SDK, or any of its components/examples with Open Source projects. This says nothing of the runtime -- only the SDK itself. Basically you can't lump the SDK into a package covered under another license. We must also notice this little paragraph, which would seem rather important:
All told, this is fairly standard as a Microsoft prerelease/beta license agreement. They are giving you tools, code samples, documentation, etc... and you are agreeing not to distribute this SDK as part of any other projects, especially Open Source ones. You are also agreeing not to distribute any projects that you create, or use them in "production" systems. Now if the final release version of the runtime included these clauses, we should start raising some eyebrowes.
-- russ
Natural != (nontoxic || beneficial)