[Fedora-legal-list] Fedora and MS-PL (Dynamic Language Runtime)

Sat Dec 5 18:31:28 UTC 2009

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)