decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Wednesday, June 21 2006 @ 09:19 PM EDT

Creative Commons has announced that you can download a tool now from Microsoft that will attach a Creative Commons license of your choice to any Word, Excel or Powerpoint document. As much as I appreciate Creative Commons, I think you should look at the EULA and read it carefully before you say "I do." I understand the hopes here, but it does seem a mismatch. I have marked the parts I particularly noticed. The tool makes the process easy, but it is not your only choice.

After the EULA, I will place the press release about the tool. Then you can make up your own mind.

************************

MICROSOFT SOFTWARE LICENSE TERMS CREATIVE COMMONS ADD-IN FOR MICROSOFT OFFICE

These license terms are an agreement between Microsoft Corporation (or based on where you live, one of its affiliates) and you. Please read them. They apply to the software named above, which includes the media on which you received it, if any. The terms also apply to any Microsoft

* updates,
* supplements,
* Internet-based services, and
* support services

for this software, unless other terms accompany those items. If so, those terms apply.

BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE. IF YOU COMPLY WITH THESE LICENSE TERMS, YOU HAVE THE RIGHTS BELOW.

1. INSTALLATION AND USE RIGHTS. You may install and use the software on any of your devices.

2. DISTRIBUTION. You may copy and distribute the software; provided, however:

a. You may not:
* alter any copyright, trademark or patent notice in the software;

* use Microsoft’s trademarks in your programs’ names or in a way that suggests your programs come from or are endorsed by Microsoft;

* distribute the software along with malicious, deceptive or unlawful programs; * modify or make derivative works of the software;

* copy or distribute the software for commercial purposes, including for or in any way related to the operation of any business enterprise, military or government operations or revenue-generating activities; or

* distribute the software so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that

* the code be disclosed or distributed in source code form; or

* others have the right to modify it.

b. For any software you distribute, you must:

* distribute the software as is, including with these terms and acceptance processes unmodified; and

* indemnify, defend, and hold harmless Microsoft from any claims, including attorneys’ fees, related to the distribution or use of any of your programs which may be distributed with the software.

c. Separation of Components. The components of the software are licensed as a single unit. You may not separate the components and install them on different devices.

3. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the software. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. For more information, see www.microsoft.com/licensing/userights. You may not:

* work around any technical limitations in the software;

* reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;

* make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation;

* use the software in any way that is against the law;

* rent, lease or lend the software; or

* use the software for commercial software hosting services.

4. EXPORT RESTRICTIONS. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.

5. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CAN RECOVER FROM MICROSOFT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES. This limitation applies to:

• anything related to the software, services, content (including code) on third party Internet sites, or third party programs, and

• claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.

It also applies even if Microsoft knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.

6. DISCLAIMER OF WARRANTY. The software is licensed “as-is.” You bear the risk of using it. Microsoft gives no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws which this agreement cannot change. To the extent permitted under your local laws, Microsoft excludes the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

7. ENTIRE AGREEMENT. This agreement (including the warranty below), and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the software and support services.

8. APPLICABLE LAW.

a. United States. If you acquired the software in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.

b. Outside the United States. If you acquired the software in any other country, the laws of that country apply.

9. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the software. This agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.


*****************************

Microsoft and Creative Commons Release Tool for Copyright Licensing The organizations announce availability of Microsoft Office add-in that enables easy access to Creative Commons copyright licenses.

Redmond, WA, USA; San Francisco, CA, USA – June 20, 2006

Microsoft Corp. and Creative Commons, a nonprofit organization that offers flexible copyright licenses for creative works, have teamed up to release a copyright licensing tool that enables the easy addition of Creative Commons licensing information for works in popular Microsoft® Office applications. The copyright licensing tool will be available free of charge at Microsoft Office Online, http://office.microsoft.com, and CreativeCommons.org. The tool will enable the 400 million users of Microsoft Office Word, Microsoft Office Excel® and Microsoft Office PowerPoint® to select one of several Creative Commons licenses from within the specific application.

"We're delighted to work with Creative Commons to bring fresh and collaborative thinking on copyright licensing to authors and artists of all kinds," said Craig Mundie, chief research and strategy officer at Microsoft. "We are honored that creative thinkers everywhere choose to use Microsoft tools to give shape to their ideas. We're committed to removing barriers to the sharing of ideas across borders and cultures, and are offering this copyright tool in that spirit."

"The goal of Creative Commons is to provide authors and artists with simple tools to mark their creative work with the freedom they intend it to carry," said Lawrence Lessig, professor of law at Stanford Law School and founder of Creative Commons. "We're incredibly excited to work with Microsoft to make that ability easily available to the hundreds of millions of users of Microsoft Office."

"It's thrilling to see big companies like Microsoft working with nonprofits to make it easier for artists and creators to distribute their works," said Gilberto Gil, cultural minister of Brazil, host nation for the Creative Commons iSummit in Rio de Janeiro June 23 through 25, where the copyright licensing tool will be featured. Gil, who will keynote at the iSummit, has released one of the first documents using the Creative Commons add-in for Microsoft Office.

The goal of the Creative Commons licenses is to give an author a clearer ability to express his or her intentions regarding the use of the work. The Microsoft Office tool allows users to choose from a variety of Creative Commons licenses that enable an author to retain copyright ownership, yet permit the work to be copied and distributed with certain possible restrictions, such as whether or not the work can be used commercially and whether or not modifications can be made to the work. The full list of licenses available from Creative Commons is available online at http://creativecommons.org/about/licenses/meet-the-licenses. The tool also provides a way for users to dedicate a work to the public domain.

"Microsoft's openness in working with the Creative Commons is a very exciting because an author can now easily embed licenses to creative works during the process of innovation," said Ian Angell, professor of Information Systems at the London School of Economics (LSE). "This is an important step in ensuring that each individual becomes aware of his or her own intellectual property rights — and those of others. We at the LSE are keen to work with Microsoft toward empowering the 'creators of intellectual wealth' to become more involved in its commercial use." The LSE partners with Creative Commons to drive Creative Commons license adoption and awareness in England and Wales.

"Creative Commons licenses are essential for protecting my creative work and for sharing it with others. They help with copyright issues, which frees me to do my job: making movies. I'm glad Microsoft Office users can now so easily use Creative Commons' tools," said Davis Guggenheim, director of the documentaries "An Inconvenient Truth" and "Teach" and member of the board of directors of Creative Commons.

"The collaboration of Microsoft and Creative Commons to bring Creative Commons licenses to Microsoft Office applications underscores how for-profit companies and nonprofit organizations can work together to bring innovative ideas and tools to the public," said Alan Yates, general manager of the Information Worker Division at Microsoft.

Microsoft and Creative Commons partnered with 3sharp LLC, a Redmond-based independent solution provider to develop and test the copyright licensing tool.

About Microsoft

Founded in 1975, Microsoft (Nasdaq "MSFT") is the worldwide leader in software, services and solutions that help people and businesses realize their full potential.

About Creative Commons Creative Commons is a not-for-profit organization, founded in 2001, that promotes the creative re-use of intellectual and artistic works — whether owned or in the public domain. Creative Commons licenses provide a flexible range of protections and freedoms for authors, artists and educators that build upon the "all rights reserved" concept of traditional copyright to offer a voluntary "some rights reserved" approach. It is sustained by the generous support of various foundations including the John D. and Catherine T. MacArthur Foundation, the Omidyar Network Fund, the Hewlett Foundation, and the Rockefeller Foundation as well as members of the public. For general information, visit http://creativecommons.org.


  


An Odd Marriage: the Creative Commons-Microsoft Tool's EULA | 93 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here Please
Authored by: Kosh Nanarek on Wednesday, June 21 2006 @ 09:56 PM EDT


---
"And so, it begins."

[ Reply to This | # ]

Off-Topic Here
Authored by: Kosh Nanarek on Wednesday, June 21 2006 @ 09:57 PM EDT


---
"And so, it begins."

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: WhiteFang on Wednesday, June 21 2006 @ 10:19 PM EDT
Odd marriage indeed.

Consider it another form of lock-in. You have to be running an MS Windows OS to
run it.

Who needs that?

---
DRM - Degrading, Repulsive, Meanspirited
'Nuff Said

[ Reply to This | # ]

What an odd license...
Authored by: Anonymous on Wednesday, June 21 2006 @ 10:26 PM EDT


Seriously though - Microsoft comes up with this neat free toy, and give it a
license that looks designed solely to annoy. Great idea, horrible execution.

And of course we need to ask where the Open Office equivalent is.

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: Stumbles on Wednesday, June 21 2006 @ 10:52 PM EDT
I thought reverse engineering was an acceptable practice.

---
You can tuna piano but you can't tune a fish.

[ Reply to This | # ]

What's the point of this thing anyway?
Authored by: fb on Wednesday, June 21 2006 @ 10:53 PM EDT
This is for the people who have trouble typing the copyright statement *into*
their productions? Is it just me, or is this a solution in search of a
problem?

[ Reply to This | # ]

Missing the point.
Authored by: gemsling on Wednesday, June 21 2006 @ 11:47 PM EDT
This article puzzles me, as it mentions Creative Commons, claiming "An Odd
Marriage", but it has nothing to do with Creative Commons. Instead, it is
simply a complaint about Microsoft's EULA terms, which are probably much the
same as for other Microsoft applications. The EULA terms refer to the
software/add-on itself, not your creative work, or the CC licence you apply to
it.

In other words, there is a difference between this tool (with it's objectionable
EULA terms) and the CC licence that is applied to the MS Office document. If
you're using a proprietary word processor already, what's the problem with using
an add-on for it?

It's almost like you're saying "CC is about freedoms, so software used to
apply CC licences should carry similar freedoms". Odd logic.

What's missing from this article and missing from the pages at both Creative
Commons and Microsoft, is information on -how- the CC licence is applied to the
file:

- Is it visual, machine readable, or both?

- How do search engines and other third-party tools read these files to
determine that a licence is attached, and which licence it is?

Rather than picking on MS for making a proprietary extension to a proprietary
application, shouldn't we be highlighting the closed nature of MS Office
documents? Highlighting the importance of open formats, and the fact that the
Creative Commons licences work best when they are used in standard, clearly
defined ways so that everyone can find and understand the licence within the
file?

[ Reply to This | # ]

Equals GPL 3
Authored by: IMANAL on Thursday, June 22 2006 @ 03:06 AM EDT
The paragraph "You may not use the software for commercial software hosting services" does indeed look very similar to a suggested intention with GPL3 by Richard M Stallman:


Federico Biancuzzi:
"Some companies, such as Google, use code covered by GPL to offer their services through the Web. Do you plan to extend GPL 3 copyleft to request code publication in this case too, considering this behavior like a product distribution?"


Richard M Stallman:
"Running a program in a public server is not distribution; it is public use. We're looking at an approach where programs used in this way will have to include a command for the user to download the source for the version that is running.

But this will not apply to all GPL-covered programs, only to programs that already contain such a command. Thus, this change would have no effect on existing software, but developers could activate it in the future.

This is only a tentative plan, because we have not finished studying the matter to be sure it will work."




Will it work? Maybe they should wait and see if it works for Microsoft... Anyhow, it seems no-one can now complain that GPL would be un-american.





---
--------------------------
IM Absolutely Not A Lawyer

[ Reply to This | # ]

"Re: You may not work around..."
Authored by: Anonymous on Thursday, June 22 2006 @ 03:09 AM EDT
any technical limitations in the software".

So if this thing does (say) 99% of what I want, I'm not allowed to do the
remaining 1% by hand? Stuff that!

I've never used any programming tool, from Microsoft or anyone else, for more
than a few hours without having to work around technical limitations in the
software - giafly

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: Anonymous on Thursday, June 22 2006 @ 03:19 AM EDT
I'm not sure what's wrong with:

"You may not: ... use the software in any way that is against the
law".

Microsoft can't grant a licence to break the law.

Or have I missed something?

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: Anonymous on Thursday, June 22 2006 @ 03:22 AM EDT
I develop code using GPL, BSD, ZLib/LibPNG, public domain and closed source
licenses... why is it so difficult to understand that you can use multiple
different licenses for different purposes?

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: Anonymous on Thursday, June 22 2006 @ 03:27 AM EDT
Most of this I've not got a problem with. I can't see any problem with
Microsoft saying "This is our software, you're not allowed to disassemble
it or distribute it without our consent.". That's fair enough, it's
commercial closed source software and just because they're supporting creative
commons doesn't mean they have any obligation to open their code.

I do find the line saying your not allowed to work around technical limitations
a bit extreme.

Worst case example: There's a technical limitation (could even be due to a
bug), meaning you can't save these documents in any format other than Word .doc.
You've now got creative commons licenced work which you can't save in an
alternative format, and which requires commercial software to view it.

And it's no good trying to copy / paste it into another editor... you're now
working around a techncial limitation and are in breach of the licence.

Myxiplx
(forgot my password ages ago, can't be bothered to look it up)

[ Reply to This | # ]

And the point is...
Authored by: Chaosd on Thursday, June 22 2006 @ 06:18 AM EDT

Setting aside the fact that the EULA refers to the tool, not the documents created by the user I think there are some important issues to flag up here.

The press release makes two telling points, firstly that:

"We are honored that creative thinkers everywhere choose to use Microsoft tools to give shape to their ideas. We're committed to removing barriers to the sharing of ideas across borders and cultures, and are offering this copyright tool in that spirit." [Craig Mundie, chief research and strategy officer at Microsoft.]

Yet the EULA states:

You may not:

* distribute the software so that any part of it becomes subject to an Excluded License. An Excluded License is one that requires, as a condition of use, modification or distribution, that

* the code be disclosed or distributed in source code form; or

* others have the right to modify it.

* reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;

At best this sends confusing and conflicting signals (do as I say, not as I do) - on the one hand MS claim they want freedom to share and therefore innovate, but they require that users of this tool give up those freedoms (at least with relation to the tool).

Even worse, this tool would probably make an excellent example of how to extend Office - it does something useful but trivial, and integrates with the UI. These are features I would (as an IT 'pro') like to be able to replicate

The worst case is that MS tack on EULAs in the same way most of us accept them - blindly and without thought. The famifications of this thought are truly scary

The second telling point in the press release is, perhaps, of greater importance:,

"... said Ian Angell, professor of Information Systems at the London School of Economics (LSE). "This is an important step in ensuring that each individual becomes aware of his or her own intellectual property rights — and those of others."

Please note, this is an MS press release, so although Ian Angell of the LSE said this, MS choose to publish it

Here is the crux of the matter - by getting excited about your rights, MS then has the moral high ground to mention their rights. Having the moral high ground in the rights debate is important to MS - their core business is in controlling rights to 'intellectual property', so they need be seen to be whiter-than-white on this issue.

I also think this is an attempt to sell/sneak DRM to Creative Commons content holders/creators. If MS can get DRM accepted for free content, who can argue against it's adoption for commercial content?

All in all it looks like MS are still dancing a jig to the tune of a reel.

---
-----
No question is stupid || All questions are stupid

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: iraskygazer on Thursday, June 22 2006 @ 07:10 AM EDT
PJ,

This is more basic than an old marriage. It is the same old method that
Microsoft has used for years so it can continue its monopoly.

Microsoft is depending on the laziness of document creators and authors who
are not tech savvy. The company uses the same technique to catch authors, in
their illegal web, as is used by internet phishers and scammers. Each group uses
human engineering to entrap people. Simply offer to make things easy and offer a
line saying that you understand their pain and before you know it you have
complete access to a persons personal information and can control them or steal
their identities.

Just the same old M$.

[ Reply to This | # ]

b. For any software you distribute, you must:
Authored by: Anonymous on Thursday, June 22 2006 @ 07:47 AM EDT
"b. For any software you distribute, you must:" Seems to cover ANY and
all software you may wish to sell or give away not just this program. A somewhat
over the top contract clause verging on the illegal.

archivist not logged in

[ Reply to This | # ]

An Odd Marriage: the Creative Commons-Microsoft Tool's EULA
Authored by: shiptar on Thursday, June 22 2006 @ 09:01 AM EDT
I'm pretty stupid, and I miss the point sometimes with all this law stuff,
however, if you are using Microsoft software, haven't you already agreed to more
onerous terms than those provided with the tool?

Should the tool somehow grant you freedom? Not sure what you people are
expecting. Should have stopped buying MS software years ago if you cared.


[ Reply to This | # ]

Troll Surge or SurgeTroll
Authored by: tangomike on Thursday, June 22 2006 @ 02:43 PM EDT
Which is it?

Looking for an example? The comments to this article illustrate the phenonmenon.

---
Deja moo - I've heard that bull before.


[ Reply to This | # ]

An Odd Marriage
Authored by: TerryH on Friday, June 23 2006 @ 05:27 AM EDT
Just mentioning "Creative Commons" and "Microsoft" in the
same sentence ought to send a shiver up anyone's spine (I know it woke me up),
but the actual EULA terms don't seem terribly surprising to me. It's just yet
another closed source product from a closed-source company.

Surely anyone who objects to MS EULA has already jumped ship? (Or darned well
ought to, what does it take?)

I am wondering where the knife is, but that EULA isn't it.

As for doing the same with OpenOffice ...

Those of us who use free software are going to be using the (free and Free)
ccPublisher app to do this kind of thing, if I understand the function of both
programs. I'm not certain that I do, though -- but how hard can it be to add RDF
to XML file formats? If CC doesn't already have a free tool to do this, somebody
needs to tell me so I can write the 100 lines of Python it's likely to take --
I'm gonna need a tool like that soon anyway.

I think that in the universe of remotely likely Microsoft actions, though, this
is relatively benign. Sure I'd like to see Microsoft go open source, but I
suspect I'll have to settle for the second-best outcome of watching them die a
slow death because they won't.

Consider this, though: for many current Microsoft users, this may be their first
introduction to free-licensing concepts. If they start learning about the
benefits, they may eventually begin to see what's wrong with that EULA.

And at that point, the main problem is with Creative Commons. Because of the
lack of disambiguation, there is a significant risk that newbies will opt for
the "most popular" 'non-commercial' licenses instead of true commons
licenses. Then, when copyleft synergy fails to manifest, they'll reject the
whole copyleft idea without realizing that they haven't actually tried it.

Fortunately, CC is also working on that problem. I remain a little concerned
about their success, but they are making a few smart changes in the CC v3
program, so I have hope.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )