I apologize if resurrecting such an old thread is considered poor etiquette for this list; however, it seems that the discussion in this thread served as a predicate for the MS-PL being deemed acceptable for inclusion in Fedora[1], and I wish to raise a question about that decision[2].
While the discussion in this thread effectively addressed the incompatibility between the Microsoft Public License and GNU's General Public license, it focused upon terms of the GPL and whether they might preclude inclusion of MS-PLed code in Fedora. I feel it is far more incumbent to examine the terms and conditions of the MS-PL and consider whether those terms can be satisfied should both MS-PLed code and GPLed code be provided together on a CD/DVD or in a corresponding ISO file.
In brief, my concern lies with the fact that there is no explicit exception included in the MS-PL for "collective works" or "compilations" as defined under U.S. copyright law[3]; instead the MS-PL is based[4] upon the U.S. Copyright Act's definition of "derivative works"[5] and a license-explicit definition of a "contribution"[6], and it claims for its applicable scope all derivative works of the contribution.
This is problematic for a Fedora distribution because, though Fedora should rightly fit the definition for a "compilation", it may still qualify as a "derivative work" as those terms are defined in the U.S. Copyright Act. The two classifications are not of necessity mutually exclusive; as stated in the congressional footnotes to the Copyright Act[7]:
"Between them the terms 'compilations' and 'derivative works' which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. THERE IS NECESSARILY SOME OVERLAPPING BETWEEN THE TWO, but they basically represent different concepts." (emphasis mine)
Further coverage of the legal uncertainty at to whether a compilation (or even collective work) can be considered a derivative work can be found in the Copyright Office's "Copyright Registration for Derivative Works" circular[8 (PDF)], and in the first chapter[9] of Lee A. Hollaar's "Legal Protection of Digital Information".
Though I am an engineer (not a lawyer), it seems the distinction being made in the Copyright Act phraseology is owing to the legislature's desire to clarify the durations and protections of copyright obtained in the constituent parts of a collection or compilation, and not a presumption of the law to interfere with the exclusive rights of the copyright holder to decide the terms and scope under which his work might be licensed. In other words, I find it entirely conceivable that a court would find that it is within an author's rights to prohibit distribution of his work in collections/compilations containing other works which the author may find objectionable.
While my interpretation is by no means conclusive (and certainly not authoritative), it should be noted that it is this legal uncertainty which has prompted other reciprocal licenses to provide explicit exceptions for "collective works". This is addressed employing the term "mere aggregation" in Section 3 of the GPLv2[10], and the term "aggregate" in Section 5 of the GPLv3[11] and in Section 7 of the GNU Free Document License[12]. It is addressed in the Creative Commons Share-Alike by providing a license-specific definition of a "collection" and exempting such collections from reciprocity terms[13].
I won't speculate as to whether it was the intent of the authors of the Microsoft Public License to consider "mere aggregation" to be excluded from the scope of their reciprocal terms and conditions[14], but regardless of their intent it seems that lack of an exception being explicitly provided within the license itself may potentially lead to a court decision that inclusion of both MS-PLed and GPLed software within a Fedora distribution constitutes copyright infringement -- not because the terms of the GPL weren't met, but that those of the MS-PL were not met.
Any clarification on this issue would be appreciated.
Regards.
---------------------------------- [1] http://fedoraproject.org/wiki/Licensing#Software_License_List MS-PL listed under "Software Licenses that are OK for Fedora"
[2] https://www.redhat.com/archives/fedora-legal-list/2009-August/msg00017.html "The MS Public License is acceptable for Fedora, Free but GPL incompatible. I'm adding it to the table now." -- Tom Calloway
[3] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html "A 'collective work' is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. "A 'compilation' is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term 'compilation' includes collective works." -- USC Title 17 Section 101
[4] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL "The terms 'reproduce', 'reproduction', 'derivative works', and 'distribution' have the same meaning here as under U.S. copyright law." -- MS-PL: Definitions
[5] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'." -- USC Title 17 Section 101
[6] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL "A 'contribution' is the original software, or any additions or changes to the software." -- MS-PL: Definitions
[7] http://digital-law-online.info/lpdi1.0/treatise6.html "Between them the terms 'compilations' and 'derivative works' which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A ?compilation? results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A ?derivative work,? on the other hand, requires a process of recasting, transforming, or adapting ?one or more preexisting works?; the ?preexisting work? must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted." FN31: H.R. Rep. No. 94-1476
[8] http://www.copyright.gov/circs/circ14.html
[9] http://digital-law-online.info/lpdi1.0/treatise6.html
[10] http://www.gnu.org/licenses/old-licenses/gpl-2.0.html "In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License." -- GPLv2
[11] http://www.gnu.org/licenses/gpl.html "Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate." -- GPLv3
[12] http://www.gnu.org/licenses/fdl.html "When the Document is included in an aggregate, this License does not apply to the other works in the aggregate which are not themselves derivative works of the Document." -- GFDL
[13] http://creativecommons.org/licenses/by-sa/3.0/legalcode "A work that constitutes a Collection will not be considered an Adaptation (as defined below) for the purposes of this License." -- CC-SA [14] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL "If you distribute any portion of the software in source code form, you may do so only under this license by including a complete copy of this license with your distribution. If you distribute any portion of the software in compiled or object code form, you may only do so under a license that complies with this license." -- MS-PL Section 3d)
On Sat, 05 Dec 2009 13:31:28 -0500 saulgoode@flashingtwelve.brickfilms.com wrote:
I won't speculate as to whether it was the intent of the authors of the Microsoft Public License to consider "mere aggregation" to be excluded from the scope of their reciprocal terms and conditions[14], but regardless of their intent it seems that lack of an exception being explicitly provided within the license itself may potentially lead to a court decision that inclusion of both MS-PLed and GPLed software within a Fedora distribution constitutes copyright infringement -- not because the terms of the GPL weren't met, but that those of the MS-PL were not met.
I think you're arguing that we should consider the possibility that the MS-PL is what I'll call a 'hyper-strong' copyleft license, with a copyleft scope broader than that traditionally assumed by consensus of GPL-licensing communities to apply to the GPL, extending to combinations that would not have any copyleft implications in a GPL context, if only because of the latter's 'mere aggregation' clause.[1] The particular concern you have is that the MS-PL intended copyleft scope could extend to whole compilations in the copyright law sense, as for example all the code in a Fedora .iso that happens to contain one package licensed under MS-PL.
There are a number of reasons, largely involving common sense and cultural intuition, why I think it is *extremely* unlikely that such an interpretation was intended by Microsoft (or other licensors using the MS-PL or would be adopted by such licensors or by a court construing this license. The likelihood is so remote that I think we can safely ignore it. However, if the issue continues to concern you, you may wish to contact Microsoft to get clarification from the horse's mouth. (Michele Herman at Microsoft's outside counsel firm Woodcock Washburn might be the best contact.)
- Richard
[1]Although I think the historical evidence shows that Richard Stallman added the mere aggregation clause to proto-versions of the GPL so he would stop getting questions about whether it was okay to distribute GNU software and unrelated proprietary software on the same tape, an issue he seems to have thought should have been obvious.
Thank you for the rapid response and for concisely representing my concern. I won't belabor your decision but I will admit that I am bit more skeptical about associating "common sense" with some of the rulings and dicta of U.S. copyright law. :)
I also thank you for the suggestion that I contact Michele Herman to discover Microsoft's understanding of the scope of their license; though I would consider that more in the nature of philosophical inquiry as it would seem the more legitimate concern would target the intent (or perhaps even the degree of caprice) of the copyright holder of any MS-PLed code in question.
Regards.
P.S. The link provided in reference #8 of my post was incorrect and should have been:
http://www.copyright.gov/circs/circ14.pdf
If that does not work then the appropriate PDF can be found by visiting http://www.copyright.gov/circs .
Quoting Richard Fontana rfontana@redhat.com:
On Sat, 05 Dec 2009 13:31:28 -0500 saulgoode@flashingtwelve.brickfilms.com wrote:
I won't speculate as to whether it was the intent of the authors of the Microsoft Public License to consider "mere aggregation" to be excluded from the scope of their reciprocal terms and conditions[14], but regardless of their intent it seems that lack of an exception being explicitly provided within the license itself may potentially lead to a court decision that inclusion of both MS-PLed and GPLed software within a Fedora distribution constitutes copyright infringement -- not because the terms of the GPL weren't met, but that those of the MS-PL were not met.
I think you're arguing that we should consider the possibility that the MS-PL is what I'll call a 'hyper-strong' copyleft license, with a copyleft scope broader than that traditionally assumed by consensus of GPL-licensing communities to apply to the GPL, extending to combinations that would not have any copyleft implications in a GPL context, if only because of the latter's 'mere aggregation' clause.[1] The particular concern you have is that the MS-PL intended copyleft scope could extend to whole compilations in the copyright law sense, as for example all the code in a Fedora .iso that happens to contain one package licensed under MS-PL.
There are a number of reasons, largely involving common sense and cultural intuition, why I think it is *extremely* unlikely that such an interpretation was intended by Microsoft (or other licensors using the MS-PL or would be adopted by such licensors or by a court construing this license. The likelihood is so remote that I think we can safely ignore it. However, if the issue continues to concern you, you may wish to contact Microsoft to get clarification from the horse's mouth. (Michele Herman at Microsoft's outside counsel firm Woodcock Washburn might be the best contact.)
- Richard
[1]Although I think the historical evidence shows that Richard Stallman added the mere aggregation clause to proto-versions of the GPL so he would stop getting questions about whether it was okay to distribute GNU software and unrelated proprietary software on the same tape, an issue he seems to have thought should have been obvious.
-- Richard E. Fontana Open Source Licensing and Patent Counsel Red Hat, Inc.
On Sat, 2009-12-05 at 13:31 -0500, saulgoode@flashingtwelve.brickfilms.com wrote:
I apologize if resurrecting such an old thread is considered poor etiquette for this list; however, it seems that the discussion in this thread served as a predicate for the MS-PL being deemed acceptable for inclusion in Fedora[1], and I wish to raise a question about that decision[2].
I didn't know that. I'm glad it has had such an effect.
While the discussion in this thread effectively addressed the incompatibility between the Microsoft Public License and GNU's General Public license, it focused upon terms of the GPL and whether they might preclude inclusion of MS-PLed code in Fedora. I feel it is far more incumbent to examine the terms and conditions of the MS-PL and consider whether those terms can be satisfied should both MS-PLed code and GPLed code be provided together on a CD/DVD or in a corresponding ISO file.
I'm not certain how they are mutually exclusive aside from where inter-linking within the same application is concerned...
In brief, my concern lies with the fact that there is no explicit exception included in the MS-PL for "collective works" or "compilations" as defined under U.S. copyright law[3]; instead the MS-PL is based[4] upon the U.S. Copyright Act's definition of "derivative works"[5] and a license-explicit definition of a "contribution"[6], and it claims for its applicable scope all derivative works of the contribution.
I still do not see how this applies to applications which do not link between one another, unless you are implying that an .iso file is not a collection of separate works, but is instead a work in itself. If this is the case, then MS-PL and GPL are the least of our problems. We run into issues with OpenSSL licenses, LGPL vs GPL, etc. I think the fact that this has not been a problem implies that an .iso is not considered a single work, but a collection.
This is problematic for a Fedora distribution because, though Fedora should rightly fit the definition for a "compilation", it may still qualify as a "derivative work" as those terms are defined in the U.S. Copyright Act. The two classifications are not of necessity mutually exclusive; as stated in the congressional footnotes to the Copyright Act[7]:
"Between them the terms 'compilations' and 'derivative works' which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. THERE IS NECESSARILY SOME OVERLAPPING BETWEEN THE TWO, but they basically represent different concepts." (emphasis mine)Further coverage of the legal uncertainty at to whether a compilation (or even collective work) can be considered a derivative work can be found in the Copyright Office's "Copyright Registration for Derivative Works" circular[8 (PDF)], and in the first chapter[9] of Lee A. Hollaar's "Legal Protection of Digital Information".
Though I am an engineer (not a lawyer), it seems the distinction being made in the Copyright Act phraseology is owing to the legislature's desire to clarify the durations and protections of copyright obtained in the constituent parts of a collection or compilation, and not a presumption of the law to interfere with the exclusive rights of the copyright holder to decide the terms and scope under which his work might be licensed. In other words, I find it entirely conceivable that a court would find that it is within an author's rights to prohibit distribution of his work in collections/compilations containing other works which the author may find objectionable.
As I said above, if this is the case, we'd better stop shipping software collections on iso files ;)
While my interpretation is by no means conclusive (and certainly not authoritative), it should be noted that it is this legal uncertainty which has prompted other reciprocal licenses to provide explicit exceptions for "collective works". This is addressed employing the term "mere aggregation" in Section 3 of the GPLv2[10], and the term "aggregate" in Section 5 of the GPLv3[11] and in Section 7 of the GNU Free Document License[12]. It is addressed in the Creative Commons Share-Alike by providing a license-specific definition of a "collection" and exempting such collections from reciprocity terms[13].
I won't speculate as to whether it was the intent of the authors of the Microsoft Public License to consider "mere aggregation" to be excluded from the scope of their reciprocal terms and conditions[14], but regardless of their intent it seems that lack of an exception being explicitly provided within the license itself may potentially lead to a court decision that inclusion of both MS-PLed and GPLed software within a Fedora distribution constitutes copyright infringement -- not because the terms of the GPL weren't met, but that those of the MS-PL were not met.
Any clarification on this issue would be appreciated.
Regards.
[1] http://fedoraproject.org/wiki/Licensing#Software_License_List MS-PL listed under "Software Licenses that are OK for Fedora"
[2] https://www.redhat.com/archives/fedora-legal-list/2009-August/msg00017.html "The MS Public License is acceptable for Fedora, Free but GPL incompatible. I'm adding it to the table now." -- Tom Calloway
[3] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html "A 'collective work' is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. "A 'compilation' is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term 'compilation' includes collective works." -- USC Title 17 Section 101
[4] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL "The terms 'reproduce', 'reproduction', 'derivative works', and 'distribution' have the same meaning here as under U.S. copyright law." -- MS-PL: Definitions
[5] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'." -- USC Title 17 Section 101
[6] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL "A 'contribution' is the original software, or any additions or changes to the software." -- MS-PL: Definitions
[7] http://digital-law-online.info/lpdi1.0/treatise6.html "Between them the terms 'compilations' and 'derivative works' which are defined in section 101, comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A ?compilation? results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A ?derivative work,? on the other hand, requires a process of recasting, transforming, or adapting ?one or more preexisting works?; the ?preexisting work? must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted." FN31: H.R. Rep. No. 94-1476
[8] http://www.copyright.gov/circs/circ14.html
[9] http://digital-law-online.info/lpdi1.0/treatise6.html
[10] http://www.gnu.org/licenses/old-licenses/gpl-2.0.html "In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License." -- GPLv2
[11] http://www.gnu.org/licenses/gpl.html "Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate." -- GPLv3
[12] http://www.gnu.org/licenses/fdl.html "When the Document is included in an aggregate, this License does not apply to the other works in the aggregate which are not themselves derivative works of the Document." -- GFDL
[13] http://creativecommons.org/licenses/by-sa/3.0/legalcode "A work that constitutes a Collection will not be considered an Adaptation (as defined below) for the purposes of this License." -- CC-SA [14] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL "If you distribute any portion of the software in source code form, you may do so only under this license by including a complete copy of this license with your distribution. If you distribute any portion of the software in compiled or object code form, you may only do so under a license that complies with this license." -- MS-PL Section 3d)
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