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Microsoft EULA stokes crusade
Posted by
sengan
on Thu Jun 21, 2001 01:03 PM
from the viral's-anagram-is-rival dept.
from the viral's-anagram-is-rival dept.
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.
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Microsoft EULA stokes crusade
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Illegal to develop with Windows? (Score:3)
It is later clarified that any "Publicly Available Software" is considered potentially viral.
Publicly Available Software is defined in part as:
fromWe therefore have the following predicament:
1) BSD's TCP/IP stack is distributed under an open source license.
2) Windows is "derived in any manner, in whole or in part" from BSD's TCP/IP stack.
3) Therefore, by the above definition, Windows is "Publicly Available Software"
4) Therefore, end users may not use Windows to develop software including this Software.
Re:We made Microsoft angry.. (Score:4)
A light-hearted look at licenses ... (Score:5)
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?
Re:You test it, you bought it. (Score:3)
This is a recipe for "You've been a baaaad company, Soko. As you agreed, you are contractually obliged to obtain a license for the commercially released version of the software. Just for you, the price is $50,000 or your immortal soul ;) just kidding! $50,000 or controlling interest..."
It's not like a EULA has any teeth (Score:3)
If people violate the EULA and continue to use open-source software in conjunction with Microsoft software, and if Microsoft fights back legally, just take a page from their book and make sure the court case is drawn out long and slowly, until it doesn't really matter any more.
Re:Definition of 'Potentially Viral Software" (Score:5)
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.
Go on, keep quoting: (Score:3)
Secondly, YANAL: if I write program Foo that links against Microsoft code, and I GPL Foo, that doesn't mean squat to Microsoft, despite their current lying PR campaign. If the Microsoft code is part of their OS or compiler distribution, then my GPL'ing Foo means nothing. Otherwise, my GPL'ing Foo means that I am the only one allowed to redistribute Foo (because no one else could do so without violating the GPL). In neither case does anything "viral" happen.
Microsoft itself distributes GPL software. (Score:5)
sigh, story is a troll (Score:4)
The offending part of the EULA:
"(c) Open Source. 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."
In other words, don't distribute any bits of their SDK using one of the "naughty" licences. Which is fair enough - distribute the software you write w/o any bits of their SDK, and tell people where to find the SDK separately.
Shrug, no big issue here. Move on, etc.
~Cederic
the GPL is a vaccine against proprietary lockdown (Score:5)
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.
Re:But come on here... (Score:3)
Guess you bots never thought your precious arguments would end up in a Microsoft EULA, did ya? Bill says keep up the good work-er-flamewars.
--
Re:GPL does restrict seperate works distributed wi (Score:4)
Furthermore, there is no way for a license to superced the original license. You cant take something that I wrote and apply a new license to it.
M$ is intentionally confusing different uses (Score:3)
But, this reality is not helpful to M$'s propaganda. So, they are intentially confusing the issue of when the "viral" part of the GPL kicks in. It only applies if you are writing software which includes source code which is GPL. The reality is that very few companies are in the business of selling software. The vast majority of companies are merely end users, and these are the companies M$ is trying to scare.
Notice how they frame their restriction:
(ii) not using Potentially Viral Software (e.g. tools) to develop Recipient software
The confusion is created with the vague use of the word use. For most companies, use means to simply run a program. That's what I think of when I talk about "using" a program. I "use" Linux. I "use" MSWord. I "use" Windows. Technically, I'm sure they will claim that use means "include source code in another program" if pressed, since that is the only time that their claims are true. But, you will see these claims made again and again with vague references to "using" GPL software.
We can hope this will backfire on them. After all, it's really a non-issue. If you are in the software development business, you damn well better read and understand the license on any source code you plan to include in your product, GPL or not. On the other hand, if you are just and end user of software, the GPL is about as close to public domain as you can possibly get. The mere "use" (i.e. running) of GPL software creates no obligations on the user. Contrast this to the EULA that M$ applies to all users. M$ is the one that requires users to agree to pages of dense legalese to understand what circumstances they can run the software under, not the open source community.
Re:Is this legal? (Score:3)
Exactly. Furthermore, the license doesn't just prohibit applications developed using the SDK from being distributed under the GPL:
Granted, the mention of open source as "viral" is egregious. But MS is actually prohibiting distribution of software in any form.
What is a little more disturbing, though, is this part:
Does this mean that I can't build, say, a library using this SDK that can be called from a Perl script? I don't know: I'm not a lawyer, and my head hurts. Plus, I need a nap.
You test it, you bought it. (Score:4)
(Emphasis mine)
Looks to me like the above language means "you test it, you buy it". I sure as fscking hell won't ever use this anyway, but thought that point may be usefull to explain to the PHBs why it's a bad idea in the first place.
MacOSX (Score:3)
Re:Is this legal? - MS interix uses GNU GCC (Score:3)
http://www.microsoft.com/WINDOWS2000/interix/
Does this mean you cannot make use of interix to develop for this and other simliarly licensed MS code?
More importantly does Microsoft provide the customers with a copy of the Microsoft modified source code for the above and any other GPLed products?
Re:Is this legal? (Score:3)
The passage above also seems to cover using GPL'ed software to develop your own software ("recipient software") that includes Microsoft's toolkit. But it's not exactly clear to me how this works.... Microsoft's product is not itself distributed as source, so what exactly would recipient software you create that includes Microsoft's toolkit (in whole or in part) look like? Seems like a pretty special case scenario. Seems like the restriction, if it was only concerned with redistribution wouldn't need the clause restricting the use GPL'ed software to *develop* GPL'ed software that includes the toolkit in the distribution--you just need to disallow including the toolkit period. The whole restriction on using GPL'ed software is bizarre.
Is this intended just to be confusing to scare middle managers into forbidding their developers from using GPL'ed software? Penning GPL'ed and a handful of other open source licenses as "viral" certainly suggests that that is part of the motivation.
Re:Makes perfect sense (Score:3)
Which is why I find the thing so ridiculous. "Oooo, the GPL and the MPL and all these other 'open sores' licenses will force us to open all our code. They're a cancer to our business." Bull shit. That clause was never needed and is vague enough to require a lawyer's opinion if you are going to use the SDK with anything other than MS' development suite.
Section 1c is one of the few things that I've seen which deserves "-1 redundant."
Viral again... (Score:3)
Microsoft will connect the word "viral" to all that is GPL.
They will shout it more often and louder then we'll alltogether (the open source community) be able to deny it.
I need an aspirine and a continuum shifter so that I can change universe....
Obsfuscation and Scare Tactics (Score:5)
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
Microsoft's Lies (Score:3)
The new license says that the GPL requires separate works distributed with GPL software to be GPL'd, which is false.
This has always been M$'s complaint about the GPL - and it has never been true. Now, tho, Microsoft's software contains these terms!
Re:Microsoft's Lies (Score:3)
Establishing a special case where it is true will no doubt be used to support FUD assertions that it is true in general.
/.
Is this War? (Score:3)
On the other hand, it does not appear to be NECESSARY in order to protect MS's intellectual property rights, and should certainly not be seen as some kind of "best practices" licensing model!
*IF* parts of the MS SDK got incorported in the end product, and *IF* the GPL'd product were used in such a way the the resulting schmeer (end product) constituted a "derivative work" of the GPL'd product, then, yes, the GPL might well require source code availability for the resulting end product work, including the incorporated elements of the MS SDK.
However,
First, this type of situation would not result merely from, say, using Emacs to edit a program. Or even gcc to compile it (isofar as, in that case, the LGPL would apply).
Second, if this situation DID arise, it would simply highlight the fact that there was an incompatibility between MS's license and the GPL (surprise?). The "perpetrator" might be contractually obligated to the FSF to publish the entire source, but would STILL be liable to MS for breach of contract and/or infringement for doing so as to the embeded MS elements. So in the absence of this clause, our user/developer would not actually "get away" with anything.
It is not clear to me, therefore, why MS or anyone else would NEED to put in a provision like this in in their license agreement in order to prevent their software from losing IP protection.
Of course, if what you REALLY wanted to accomplish was to deny the availability of your proprietary software to anyone in the free software camp, for example, if you thought free software was a BIG THREAT, then you might well come up with an agreement like this to force the issue.
Maybe MS should go one step further, and go "VIRAL" itself (e.g., that anything you develop with THEIR SDK has to pass down this same restriction, so that YOUR USERS can't use "Publicly Available Software" either)! Why not go all the way?
MS probably just sees itself as fighting an aggressive license agreement (the GPL) with one of its own -- fighting fire with fire.
Now, if MS started doing this in all of its licenses, it could be pretty polarizing. I could see it leading to widespread corporate edicts (or attempted edicts) to banish open source. Or users could push back, or simply ignore either these provisions, or the fact that their people are using free development tools (Don't Ask, Don't Tell).
Could be war. . . but probably not.
--Ron Abramson (ra@panix.com)
Re:Yes, but... (Score:3)
I'm sure it won't be long before a bill (UCITA?) tries to make them legally binding ... but right now ignorance is bliss
I can just picture... (Score:5)
Why the EULA should be unenforceable (Score:4)
Instead, I think MS has not thought carefully enough about the possbility that this new EULA could form the basis for a copyright misuse claim -- which would invalidate at least that provision of the license and possibly even render MS' copyrights in the SDK unenforceable.
The copyright misuse doctrine is very old, and derives from the concept of patent misuse -- to my knowledge, it has not been tested in any appellate court decision involving software. The basic idea is that the U.S. government is granting a monopoly by issuing copyrights; eg. the owner of a copyright has a legal monopoly to copy, distribute, license, sell, prepare derivative works, etc. As with any monopoly, however, if the monopoly holder abuses its power and attempts to extend one monopoly (the right to control the underlying software) into another monopoly (say, the right to control .NET development protocols, processes, toolkits, etc.) then the patent (or at least potentially the copyright) can be invalidated for misuse. It seems to me there are several arguments that that is exactly what MS is doing here -- taking the legal monopoly to the SDK granted by the U.S. government and trying to extend that into an illegal monopoly over .NET processes.
But come on here... (Score:5)
Re:sigh, story is a troll (Score:4)
(i) specifies to not distribute their code along with "viral" license code. However, the GPL allows distribution with non-GPLed code, as long as they're not part of the same program. Furthermore, (ii) specifies to not even use tools that have "viral" licenses. They speak generally of avoiding licenses that imply a legal obligation on Microsoft's part (reasonable), however they specifically mention software which could quite easily be used with creating any legal obligation (unreasonable).
This story is not a troll.
-- Agthorr ;))
(Reproducing this portion of their license is fair use, right?
Re:It's their license... (Score:5)
EULA's have severe limits. In Vault v. Quaid [seattleu.edu], 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 [umich.edu]. 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.
I can't use Microsoft Outlook? (Score:4)
(ii) not using Potentially Viral Software (e.g. tools) to develop Recipient software which includes the Software
IIRC, Microsoft Outlook is one of the biggest viral programs in existance. One need only look at the "ILOVEYOU" virus to see just how viral Outlook really is. So, I suppose you can't use Microsoft Outlook as an e-mail client while developing for the Mobile Internet Toolkit.
Licenses are fun. (Score:5)
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.
GPL does restrict seperate works distributed with (Score:3)
2b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.
IANAL but this implies that if I download the Microsoft SDK, develop some code against it, then release it under the GPL, or incorporate any GPL code, the GPL applies to the entire program, not just the modifications of the original GPL program. It is perfectly within the rights of Microsoft to prevent another license from superceding their own, or to allow users to be confused. This problem is exactly why LGPL was developed. For a program to be GPL, ALL OF THE SOURCE REQUIRED TO MAKE THE PROGRAM MUST BE GPL. You can't develop GPL code that works against non-GPL code, and distribute them together.