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Why, Why, Why OSI? - Updated
Tuesday, August 21 2007 @ 06:23 PM EDT

Matt Asay writes that he can't understand why Microsoft's submission of its Microsoft Permissive License is not being welcomed by one and all with open arms at OSI. So I thought I'd try to explain it.

Here's what he wrote:
I really, really don't understand this. I understand that Microsoft has a history of aggression against open source, as Chris DiBona wrote recently on the Open Source Initiative's (OSI) license-discuss e-mail list. I compete with Microsoft and have for many years. I get that Microsoft has been bad.

But discrimination is explicitly against the OSI's Open Source Definition, as Bill Hilf noted in responding to criticism from Google's Chris DiBona on the e-mail thread...

I understand that Microsoft may be using the OSI's license approval process to its own ends, and potentially ends that may be anti-open source. I'm still not sure, however, that it's appropriate to treat an incoming license from Microsoft any differently than one that comes from Linus Torvalds.

First of all, please note that the OSI's Open Source Definition doesn't say one word about discrimination against entities offering licenses for approval. It requires that an approved *license* not discriminate, not OSI:

5. No Discrimination Against Persons or Groups
The license must not discriminate against any person or group of persons.

6. No Discrimination Against Fields of Endeavor
The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

See? It doesn't say OSI can't discriminate. It can if it wants to, as far as the OSD is concerned. So Microsoft's representatives and defenders need to stop twisting the definition's words.

So the question becomes, should OSI discriminate? Will a farmer let a fox into the henhouse if the fox puts on a chicken suit?

I think not. Not if he wants to have any chickens. A fox in a chicken suit is still a fox and is still planning to eat his chickens. So only a stupid farmer would reason that a fox in a chicken suit, even one made from real chicken feathers, should now be allowed to reside in his chicken coop with his tasty chickens. Farmers are supposed to consider what foxes are known to do to chickens and what a fox's motives and likely purpose might be in putting on a chicken suit and sweetly pawing on the door to the henhouse.

The farmer's chickens need him to protect them, because chickens don't win battles with foxes. The fox has all the fangs in this picture. So a farmer naturally will think ahead and take steps to try to prevent such battles on his watch. The devious fox may still figure out a way to slip inside and kill some chickens, but at least the farmer wasn't the one who held open the door.

The law distinguishes between monopoly players and everybody else. Is that discrimination or is it acknowledging reality? Is there any reason for OSI to ignore reality factors, some of which Asay enumerated himself? For sure, if there is a Microsoft motive to obtain an OSI-approved license so as to use it against the community, as he posits, that would be an excellent reason not to approve it. Otherwise, the community is likely to decide OSI has become irrelevant to the community because of failure to look out for its best interests.

If in fact OSI suspects that Microsoft's real purpose is to cause harm, since OSI is a California 501(c)(3), can it approve a license it believes will harm the community's interests? The By-laws seem to me to be incompatible with any action OSI knows will cause harm, or is foreseeably likely to cause harm, to the community's interests. I'm just a paralegal, so OSI probably needs to ask its lawyers about that, but as I read it, I can't see how it can ignore a threat that an OSI license might be used against the Open Source community. A number of community members have told OSI they think accepting this license would be harmful to the community's interests, after all. Can OSI ignore that? I honestly don't see how, unless they rewrite the by-laws.

Update: I just thought of another reason to think very seriously about what licenses get approved by OSI:

11 Jan 2005: IBM today pledged open access to key innovations covered by 500 IBM software patents to individuals and groups working on open source software. IBM believes this is the largest pledge ever of patents of any kind and represents a major shift in the way IBM manages and deploys its intellectual property (IP) portfolio. The pledge is applicable to any individual, community, or company working on or using software that meets the Open Source Initiative (OSI) definition of open source software now or in the future.

IBM intends for this pledge to form the basis of an industry-wide "patent commons" in which patents are used to establish a platform for further innovations in areas of broad interest to information technology developers and users.

So approving a Microsoft license brings all that with it. Is that your intent? It's a serious responsibility now on OSI's shoulders to make sure the patent commons stays peaceful and isn't misused. It's not just about a license. There is all that goes with being on the approved list.


Why, Why, Why OSI? - Updated | 665 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: MathFox on Tuesday, August 21 2007 @ 06:34 PM EDT
I feel offended by any hen house analogies. ;-)

This is the thread for factual corrections.

If an axiomatic system can be proven to be consistent and complete from within
itself, then it is inconsistent.

[ Reply to This | # ]

Off-Topic Here
Authored by: red floyd on Tuesday, August 21 2007 @ 06:35 PM EDT
Please use clickies, follow the instructions in red, and post in HTML mode.

On-topic posts may or may not be punished.

I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Newspicks Discussion Here
Authored by: red floyd on Tuesday, August 21 2007 @ 06:37 PM EDT
Share and Enjoy(R)

Share and Enjoy is a registered trademark of the Marketing Division of the
Sirius Cybernetics Corporation.

I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Tuesday, August 21 2007 @ 06:48 PM EDT
Fool me once, shame on you! Fool me twice, shame on me!

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Tuesday, August 21 2007 @ 06:52 PM EDT
That's one scary headline. I read it as PJ saying: Why Oh Why, OSI, are you
going to approve MS's license? Good thing the first sentence in the article was
there to calm me down ;)

[ Reply to This | # ]

Who first mentioned "discrimination"
Authored by: Anonymous on Tuesday, August 21 2007 @ 07:05 PM EDT
Did Bill Hilf really bring up the "discrimination" argument? Looking back over
the text, it seems to me that the word originated with Mark Asay.

Hilf does not
argue that "any OSD compliant license should be accepted", because he takes the
time to rebut the license proliferation argument. So I think Hilf accepts that
there are considerations beyond compliance. And I don't see anywhere in his
short post where he argues that discrimination isn't among them.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Linegod on Tuesday, August 21 2007 @ 07:11 PM EDT
I'm still not sure, however, that it's appropriate to treat an incoming license from Microsoft any differently than one that comes from Linus Torvalds.

Except for the fact that Linux used an existing license, he didn't try to create his own.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: zeff on Tuesday, August 21 2007 @ 07:13 PM EDT

If Microsoft really want to show that they are going to participate in the Open Source community why not use an existing OSI approved license?

It's not like there aren't many to choose from!

[ Reply to This | # ]

Neville Chamberlain and the appeasers' blues
Authored by: Aladdin Sane on Tuesday, August 21 2007 @ 07:20 PM EDT

"My good friends, for the second time in our history, a British Prime Minister has returned from Germany bringing peace with honour. I believe it is peace for our time."
  --Neville Chamberlain

"Those who fail to learn from history are doomed to repeat it."

In history circles, the above has become to be known as appeasement. The 2007 appeasers may want to check the results of the 1938 appeasers actions before making a decision.

Also, this I posted before:

OSI needs to beware Greeks bearing gifts.

Reading another forum, it struck me that

  1. The Trojans learned something the hard way that OSI may not know yet.
  2. OSI accepting the MS license is a divide and conquer strategy, love, MS. If OSI accepts, it could split FOSS into FS and OSS permanently.

Free minds, Free software

[ Reply to This | # ]

OSI allegiances - I think they'd be more comfortable with Microsoft than with the FSF anyway
Authored by: Anonymous on Tuesday, August 21 2007 @ 07:38 PM EDT
Hasn't the OSI always leaned this way -- attempting to dilute Free Software and
morph it into a corporate license? Seems that was always their goal; and
always what their actions tried to accomplish.

I think we should just let the OSI go and partner with Microsoft; and move on
without them.

Perhaps their work would be appreciated in the Windows world.

I certainly don't want them near any software or licenses I use.

[ Reply to This | # ]

Perhaps we should analyze the license
Authored by: Jude on Tuesday, August 21 2007 @ 07:50 PM EDT
I don't have any love for Microsoft, but I do think that criticizing the license
might be more productive than just criticizing its author.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Tuesday, August 21 2007 @ 08:07 PM EDT
interestingly i think that the GPLv3 steps on those two same points...

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Tuesday, August 21 2007 @ 08:44 PM EDT
Matt Asay just doesn't get it. Microsoft has not "Capitulated." All
they did was submit some licenses.

Capitulating is what Sun did when they released Java under the GPL. Let's see
Microsoft release the source of one of their major products under a well
understood open source license. Then you can call it capitulation.

There is every reason to believe Microsoft is trying to game the OSI just like
they are trying to game ISO with OOXML.

[ Reply to This | # ]

Why we shouldn't exclude Microsoft
Authored by: Anonymous on Tuesday, August 21 2007 @ 09:03 PM EDT
The OSI is there in order to certify that a license is "open source"
according to the terms accepted by the community. The suggestion I see is that
we should not allow Microsoft to call some of its software "open
source", even though the license is 100% true to the open source

The analogy with letting the fox in the hen house is false, because all OSI
certification provides is a indication that a license is true open source. It
has an important role to ensure that companies do not try to deceive us.

If we don't approve Microsoft licenses because they are Microsoft who is next?
Do we refuse to allow Novell to publish open source licenses because they made a
patent agreement with Microsoft? I have read the Microsoft license, and find it
very reasonable. We should evaluate the license on the merits, not who wrote it.
I think the idea that we must forever reject everything Microsoft does is small

Not for one minute do I suggest letting our guard down and accepting Microsoft
as a long lost child. Obviously we need to maintain responsible suspicion of
Microsoft's motives given their past. However what I feel is wrong is to abandon
our principles of freedom and try to become a closed shop; and to allow the OSI
to discriminate. Its OPEN source for god sake - nobody should have the moral
right to tell others whether they have the right to be open.

Sorry PJ, I think you are totally wrong on this one.


Peter Harrison

[ Reply to This | # ]

Why? Because it's the principled thing to do.
Authored by: pem on Tuesday, August 21 2007 @ 09:03 PM EDT
The OSI approval process is delineated here.

The process, like much open source work, is designed to be collaborative, e.g. to work with all comers indiscriminately. The only possible reason to reject a license would be if part of step 8 were interpreted more broadly than it is intended:

Once we are assured that the license conforms to the Open Source Definition and has received thorough discussion on license-discuss or by other reviewers, and there are no remaining issues that we judge significant, we will notify you that the license has been approved, copy it to our website, and add it to the list below.
"remaining issues" could, of course, be issues outside the actual license itself, but on the other hand, all the other text and the process itself revolves around the license, so that would be a disingenuous interpretation.

I think it would only be principled to approve the license, if it meets all the required criteria. I understand that Microsoft's motives are not pure, but it may be, in this instance, that "the end justifying the means" has led Microsoft to do something right, while the same attitude of "the end justifying the means" seems to be leading a lot of people here into advocating that OSI abandon its principled position.

[ Reply to This | # ]

Just to be Contrary
Authored by: rsteinmetz70112 on Tuesday, August 21 2007 @ 09:06 PM EDT
I think the way to combat Microsoft is not to discriminate against them. The
FOSS community should live its ideas of openness. OSI should be vendor neutral,
even the Evil Empire should be given a fair hearing. That is the point of having
a third party approval of licenses, everyone gets the same deal.

That said there are already too many "Open Source" licenses, and many
are fairly similar. The path to approval for new licenses should include a
requirement that the license serves a legitimate need. OSI has talked about
license proliferation, but I don't think OSI has moved strongly enough to combat
it, nor taken sufficient steps to require new licenses to demonstrate a real

I also think OSI should move to consolidate the many already existing similar
licenses by mediating between the major projects that use them. Some people may
listen to them some people almost certainly won't.

We all also feel that deep down Microsoft is up to something but even if they
get a license approved I don't think they will attract a strong following.
Anyway there is really nothing anyone can do to keep Microsoft from publishing
and using any license they want to.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Tuesday, August 21 2007 @ 09:53 PM EDT
The thing I have a problem with in both the license's (Ms-LCL and Ms-LPL) is the
fact that they will only be allowed run on Microsoft systems. That fact is
plainly stated in both of the licenses. Where you can use BSD, GPL, etc… (OSI
license’s ) for software running under Linux, BSD, Solaris or whatever operating
system you want. Not so with ether of the MS license’s. To me that doesn’t make
it an Open Source License. It breaks both the idea and the sprit of the open
source software.

[ Reply to This | # ]

We're asking the wrong questions here
Authored by: CraigAgain on Tuesday, August 21 2007 @ 09:59 PM EDT
Asking whether the OSI should or should not accept a license based on its
corporate source, or even on whether the license meets specific parameters, is
missing the forest for the trees.

The first question should always be, "Is there a specific licensing need in
the open source community that cannot be met through the existing
licenses?" If not, then I don't care if God wrote the thing: it should be
vetoed. Designer licenses are the antithesis of the whole standardization

If there is a need, then we ask, "Does the proposed license appropriately
fill this need?" (In Microsoft's case, we never get as far as this second

Personally, my problem with the Microsoft OSI requests is that, while I can see
how these licenses might fill Microsoft's needs, I can't see them
"furthering the cause" and helping the open source community as a
whole. It's like the OOXML argument. Regardless of the quality (or lack thereof)
of its design, OOXML functions to muddy the waters and hinder the world from
adopting a truly open, interoperable, standard.

Don't change your dreams to fit reality. Change reality to fit your dreams.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Tuesday, August 21 2007 @ 10:06 PM EDT
It seems to me, that if the license fits the definition of an Open Source
license then it is one. If it walks like a duck....

Of course that is the difference between Open Source and Free Software. The
Open Source community is (usually) more pragmatic in nature. The Free Software
community is more idealistic in nature. I don't know what the OSI bylaws are,
but way back when they were starting out, I thought it was basically to certify
which licenses met the definition of Open Source using a definition that was
essentially the one used by Debian. I thought that was Bruse Perens's

If the license meets the definition, then it does. Period. Now, neither I nor
anyone else have to welcome it and I don't since we are getting way too many
similar licenses that aren't serving useful purposes. But I don't recall ever
hearing that it was OSI's job to cull the number of Open Source Licenses out
there. Maybe things have changed. Or maybe they need to.

Unless there is something in OSI's mandate that says they should reject licenses
that comply with the Open Source definition or if there is genuinely something
about the Microsoft license that does not meet that definition, then I think
they are stuck.

Maybe we need something like the Creative Commons that creates a small,
flexible, common set of Open Source Licenses that are tailorable to cut down on
the proliferation of Licenses. FSF only cares about the subset that are
copyleft and that is reasonable for them. Perhaps it is time that OSI or
someone else find/define the larger set that cover the needs of the Open Source
Community's needs.

[ Reply to This | # ]

HP's Martin Fink on license proliferation
Authored by: Anonymous on Tuesday, August 21 2007 @ 10:10 PM EDT
"Fink also had strong words for IT executives thinking of creating a new open-source software license. "Stop. Please don't. Call me", he said. He said that he approves three to five open-source projects every week at HP, that the company deals with everything from enterprise IT to cameras and printers, and he has never had to approve a new license. "Let's stop creating new licenses", he said." (article).

OSI needs to stop approving so many lawyers' vanity licenses. I don't care if they're from Microsoft or anywhere -- too many licenses is too many licenses.

[ Reply to This | # ]

Does This Sound Familiar
Authored by: Anonymous on Tuesday, August 21 2007 @ 10:25 PM EDT
(OSI) One of our most important activities is as a standards body, maintaining the Open Source Definition for the good of the community. The Open Source Initiative Approved License trademark and program creates a nexus of trust around which developers, users, corporations and governments can organize open-source cooperation. OSI Web Site
Does this sound familiar? A standards body, rather like ECMA or ISO (International Standards Organisation)? Microsoft has decided to get involved with various standards bodies. We've seen how they work the national ISO committees dealing with MS-OOXML. Why would they deal with the OSI any differently?

The OSI isn't supposed to be just a dusty office where licenses are filed away. Some of the important words and phrases in the above quoted paragraph are "for the good of the community", "nexus of trust", and "cooperation". These things don't just happen on their own. It requires that the people involved have common goals and beliefs. That's what a "community" is all about. If the OSI isn't going to have a good look at who they're letting in the door, then they had better re-think just what their purpose is.

[ Reply to This | # ]

To: Matt Asay
Authored by: vruz on Tuesday, August 21 2007 @ 11:19 PM EDT
(1) educate the public about the advantages of open source software

(2) encourage the software community to participate in open source software development;

(3) identify how software users' objectives are best served through open source software;

(4) persuade organizations and software authors to distribute source software freely they otherwise would not distribute;

(5) provide resources for sharing information about open source software and licenses;

(6) assist attorneys to craft open source licenses;

(7) manage a certification program to allow use of one or more certification trademarks in association with open source software licenses; and ...

(8) advocate for open source principles
Please explain, how does Microsoft fit in these Bylaws, most particularly according to points 1, 3 and 8 ?

In my view:

Point 1: It is not in the best interest of the open source community to have Microsoft taking part of it.

Taking just one of the many very public examples of their anti-open source behaviour, the CEO of Microsoft, Steven Ballmer has been on the record several times expressing his intent to eliminate, reduce or adversely portray open source software and its associated community.

Point 3 Independently of whatever license is presented, it is the duty of the OSI board to weigh the possible outcomes of the decisions they take when accepting a new member. It is not possible to present a balanced judgement in the best interest of the open source community by merely analyzing a proposed license. Such decisions impact developers, users and the open source ecosystem as a whole all around the world, they shouldn't be taking lightly.
Is the open source user best served by welcoming a convicted monopolist in the US and other countries, with ongoing litigation taking place in Europe and elsewhere ? Is the open source user best served by welcoming a company that has repeatedly and prominently threatened open source with litigation ? Is the open source user best served by welcoming a company that has demonstrably funded attacks on certain open source projects ?

Point 8 Given Microsoft's anti-open source propaganda in the media, and by associating OSI with Microsoft, is it safe to say the OSI is advocating for open source principles ?
According to the wording and spirit of the Bylaws, we're not talking about licenses here, we're talking about the principles the OSI advocates for. Is Microsoft's advocacy and public relations output compatible with the principles of open source ? Can a destructive and misleading campaing of disinformation be reconciled with the "principles of open source" ?

--- the vruz

[ Reply to This | # ]

  • To: Matt Asay - Authored by: Anonymous on Wednesday, August 22 2007 @ 04:24 PM EDT
Why, Why, Why OSI?
Authored by: SteveOBrien on Wednesday, August 22 2007 @ 12:41 AM EDT
If you object to a company's prices or policies, you are free to not do business
with them. Microsoft has a great business plan, and they execute it
brilliantly, not to say ruthlessly.

However, in my case, I thoroughly dislike Microsoft's policies, and I have
ordered my (fairly extensive) work and home computers such that I have no
Microsoft software, I don't want any Microsoft products of any kind, and I would
like to have one area of computing where Microsoft has no role. I haven't even
booted a Windows machine since May of 2002.

I would like to communicate to them that I don't want them anywhere near
anything that I use. It would be lovely if they would just leave us totally
alone. They pollute everything that they touch, and if they start to barge into
the open source arena, they will surely make a mess for the rest of us.

The buffoonery going on with ODF in Massachusetts and the recent circus that
they are causing with ISO process should teach us something about how they

Microsoft: Keep away from me and I'll keep away from you.

[ Reply to This | # ]

What is the problem here?
Authored by: Anonymous on Wednesday, August 22 2007 @ 01:06 AM EDT
For a licence to become approved by OSI, it has to meet certain requirements. If
Microsoft licences do meet those requirements, they should be approved. If they
don't, then they shouldn't.

Who submits the licence for approval and who wrote it is completely beside the
point. Yes, I'm aware Microsoft are a software monopoly and I personally steer
clear from their software, but that has absolutely _nothing_ to do with some
licence they wrote.

And how can a licence that meets OSI requirements "harm the community's
interests"? It cannot - by definition - no matter who's behind it. If it
can, then OSI should change the requirements.

[ Reply to This | # ]

Right on, PJ
Authored by: Anonymous on Wednesday, August 22 2007 @ 01:53 AM EDT

And as others have pointed out: if Microsoft really wants to cooperate with the free software community, there are about a jillion licenses already out there that it could choose from.

[ Reply to This | # ]

Authored by: David Dudek on Wednesday, August 22 2007 @ 02:15 AM EDT
EXTEND: Create a 'new' "Open Source License" - Done!

EMBRACE: Get OSI Approval of the "new" license - In Work!

EX...: Working on that!

David Dudek

[ Reply to This | # ]

OSI is dommed
Authored by: Anonymous on Wednesday, August 22 2007 @ 04:12 AM EDT
Scenario 1: OSI approves the two MS licenses

I would not be surprised if MS has already prepared a huge marketing and PR campaign which will be unleashed the moment the licenses are approved.

I would not be surprised if this PR campaign would go right to the throat of FOSS and to the throats of key figures in the FOSS communities. I would also not be surprised if the mysterious 200+ patents are put on the table once again. Now decorated with the claim that one has to do "open" source the Microsoft way or not at all to avoid legal problems.

On top of that OSI will have lost all its credibility among many FOSS supporters, and be essentially dead as a license clearing house.

Scenario 2: OSI does not approves the licenses

I would not be surprised if there is already a legal team at MS working to prepare a lawsuit against OSI in case OSI doesn't approve. Such a lawsuit will of course also be accompanied by a huge PR campaign.

Such a lawsuit would tie up OSI for years to come and would effectively render OSI inoperative for a long time, maybe forever. Because, could OSI survive an MS lawsuit? Could it do so without being damaged? I don't think so.


For me MS is driving a deadly wooden stake through the heart of OSI. The only thing unclear to me is with which type of hammer they'll make their way in. Already now parts of OSI seem to be divided with regards to the MS application. So MS has already managed to seed discord in OSI.

So, what can OSI do? Putting up a good fight. But only MS can win in this game. In the end they will have taken out a FOSS organization. Probably only the first one on a long black list they might have.

[ Reply to This | # ]

What good is OSI?
Authored by: Ian Al on Wednesday, August 22 2007 @ 05:44 AM EDT
Well, if PJ can use a misleading headline, so can I!

My first thought was, if a proffered licence fits the standard then OSI are compelled by their stated process to accept it. I looked through the qualifying standards and found that most of the Microsoft 'open' licences fall at the first post. The most common and compelling reason for rejection is that Microsoft usually insist that the open code only be used with Windows. That contravenes term 8. License Must Not Be Specific to a Product.

But, what if Microsoft come up with a licence that meets all of the criteria? The good of OSI is the good in its actions and goals. The Licence Proliferation Project says,

A goal of the OSI was to help expand the breadth and depth of Open Source software, and to that end the OSI encouraged companies, projects, and individuals writing software to consider using an Open Source license, or, if none seemed suitable but the idea of Open Source was, to submit a new license that satisfied the OSD while solving whatever problem made the existing licenses inappropriate.
I am a little concerned that it is given in the past tense, but it is a clear statement of OSI goals and I am confident it is still the primary goal.

So, if anyone proffers a new licence, OSI can ask why it is necessary and reject it if the stated need does not meet the above goals of the group. I can also see that PJ's objections based on past and present Microsoft behaviour are more than sufficient grounds for rejection because the effect of accepting a Microsoft licence would, if Microsoft behaviour had not already changed, fail to meet the goals of OSI licence acceptance.

Long may OSI be able to say 'there ain't nobody here, but us chickens'.

Ian Al

[ Reply to This | # ]

The discriminatory nature of MS-PL
Authored by: Anonymous on Wednesday, August 22 2007 @ 06:28 AM EDT
The MS-PL absolutely does discriminate against authors who don't hold large patent portfolios. Clause 3B allows patent holders to withdraw use of their IP (grant of use of patent) from use in the case of patent litigation, but denies the rights of non-patent holders (small or medium companies) to withdraw their IP (grant of use of copyrights) in case of non-patent holders. The MS-PL license therefore discriminates against non-patent holders.

Also look carefully at the patent clause 3B. You can't prevent Microsoft from distributing your code free, using your patents free (which you have to grant according to MS-PL) and at the same time sueing your customers or collecting patent royalties from your customers for Microsoft's patents. Remember you can only revoke your patents if Microsoft sues YOU. You can't do anything if Microsoft sues, threatens or extorts from your customers since they are not contributors. The patent clause in MS-PL is a true parasitic patent license term, much worst than not having a patent clause at all - you give up your patent and copy rights but allow others to levy patent charges on your code.

Look carefully also at the clause 3D and the words "software" and "use" on the first line. It looks like this clause has been sneakily and ambigously worded so that it can be interpreted as stating that once the contributor releases code under the MS-PL license, he/she can no longer license it under another license, whether open source or proprietary. Therefore the copyright holder loses the rights to the contributed code. This can be viewed as discriminatory, and an infringement on the freedoms of copyright holders who wish to distribute under multi-licenses of their choice.

It is clear that MS-PL the MS-PL license is drafted as a vehicle that requires contributors to give up copyright and patent rights to their own work while allowing Microsoft to exploit and leverage the copyrighted code and patents of contributors for free, by allowing Microsoft to charge a Microsoft patent tax on the contributor's work from the contributor's customers for various patented Microsoft "standards" like OOXML, the PDF replacement, .NET, Silverlight etc. on which Microsoft is planning to secure it future revenue stream.

How on earth is Microsoft to find any developer be stupid enough to release under such a developer-unfriendly license? The answer to that is OSI approval. If Microsoft can pay, bribe, or threaten to get this license certified by OSI as open, then they can put this license as a condition for use of their patented standards, and tell EU and other anti-trust authorities that the license conditions for use of their patented standards is not discriminatory - it can't be OSI has certified MS-PL as open and free - the same argument Microsoft will use for promoting OOXML if it is approved by ISO.

The MS-PL license in it's full gory

=================================================== Microsoft Permissive License (Ms-PL)

Published: October 12, 2006

This license governs use of the accompanying software. If you use the software, you accept this license. If you do not accept the license, do not use the software.

1. Definitions

The terms “reproduce,” “reproduction,” “derivative works,” and “distribution” have the same meaning here as under U.S. copyright law.

A “contribution” is the original software, or any additions or changes to the software.

A “contributor” is any person that distributes its contribution under this license.

“Licensed patents” are a contributor’s patent claims that read directly on its contribution.

2. Grant of Rights

(A) Copyright Grant- Subject to the terms of this license, including the license conditions and limitations in section 3, each contributor grants you a non-exclusive, worldwide, royalty-free copyright license to reproduce its contribution, prepare derivative works of its contribution, and distribute its contribution or any derivative works that you create.

(B) Patent Grant- Subject to the terms of this license, including the license conditions and limitations in section 3, each contributor grants you a non-exclusive, worldwide, royalty-free license under its licensed patents to make, have made, use, sell, offer for sale, import, and/or otherwise dispose of its contribution in the software or derivative works of the contribution in

the software.

3. Conditions and Limitations

(A) No Trademark License- This license does not grant you rights to use any contributors’ name, logo, or trademarks.

(B) If you bring a patent claim against any contributor over patents that you claim are infringed by the software, your patent license from such contributor to the software ends automatically.

(C) If you distribute any portion of the software, you must retain all copyright, patent, trademark, and attribution notices that are present in the software.

(D) 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.

(E) The software is licensed “as-is.” You bear the risk of using it. The contributors give no express warranties, guarantees or conditions. You may have additional consumer rights under your local laws which this license cannot change. To the extent permitted under your local laws, the contributors exclude the implied warranties of merchantability, fitness for a particular purpose and non-infringement.


[ Reply to This | # ]

Pearls before swine
Authored by: Anonymous on Wednesday, August 22 2007 @ 06:32 AM EDT
You'll never convince anyone to be reasonable about open source because these
people are paid to state *positions* not their own points of view. Just give up
on being reasonable with these pro-Microsoft religious zealots.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Wednesday, August 22 2007 @ 08:38 AM EDT
"I understand that Microsoft may be using the OSI's license approval
process to its own ends, and potentially ends that may be anti-open source. I'm
still not sure, however, that it's appropriate to treat an incoming license from
Microsoft any differently than one that comes from Linus Torvalds."

So many things wrong with this statement I don't even know where to begin.

But I will just say Linus isn't consumed with power and greed and manipulating

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Wednesday, August 22 2007 @ 08:56 AM EDT
So, PJ and her followers on this argument do not trust the OSI? Because that's
the issue. If a license meets the standards set by OSI, then it should be
accepted. To be fearful of Microsoft's License being approved by the OSI is
indicative of not trusting OSI. The question I pose then is: what reason do you
have to not trust the OSI? What events in the past cause this concern as they
are the only party that really has any power here.

[ Reply to This | # ]

Creating "buzz"
Authored by: Anonymous on Wednesday, August 22 2007 @ 09:26 AM EDT

Imagine that, paid to write hundreds of "stories" (under multiple user
names). Who would have guessed?

[ Reply to This | # ]

  • Creating "buzz" - Authored by: PJ on Wednesday, August 22 2007 @ 10:15 AM EDT
    • $1000/month - Authored by: NetArch on Wednesday, August 22 2007 @ 01:42 PM EDT
      • $1000/month - Authored by: Anonymous on Wednesday, August 22 2007 @ 03:18 PM EDT
A Very Good Point: "Flawed Logic"
Authored by: luvr on Wednesday, August 22 2007 @ 09:55 AM EDT
A certain nt007 made a very good point in a Talkback Comment:

"My guess is that you would not allow your daughter to go out on a first date with a convicted rapist even though you would have no idea about his motive toward your daughter."

If he cannot understand that, then I guess we can only assume that the doesn't have a daughter. Still, even then, and assuming he's human, he really should be able to understand it, shouldn't he?

[ Reply to This | # ]

Microsoft's plot: The ol' switcheroo
Authored by: Anonymous on Wednesday, August 22 2007 @ 10:06 AM EDT
It's transparently obvious what Microsoft aims to achieve. They'll create
confusion by getting the most permissive of their licenses OSI approved, tout
themselves as an open source player, then when it comes to actually releasing
software, they'll do so under one of the obviously non-free licenses. Of course,
OSI and FSF will try to draw a sharp distinction between the licenses that are
and aren't acceptable, but Microsoft will label them all "shared
source" and do its very best to not distinguish. The end result will be
that it appears to the unwary manager that OSI has approved Microsoft's dubious
shared-source scheme, and they've successfully muddied the waters of open-source
just enough so that laymen will be confused into accepting their cheap

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: SirHumphrey on Wednesday, August 22 2007 @ 10:07 AM EDT
I saw the fox in the hen house, dressed up like a chicken

I saw the sickening lock-in it had on its mind

I read on Groklaw

That It came from Redmond with plans to enslave and to bind

My, my, my OSI

Why, why why OSI

I could see, that licence was no good for me

Who needs a EULA* when you've got GPL V 3?

* EULA. Root of the word EULAGY, something spoken when a freedom has died.

[ Reply to This | # ]

freedom for some but not all?
Authored by: Anonymous on Wednesday, August 22 2007 @ 10:36 AM EDT
At the end of the day, no matter the twisting of words, can an individual or
group claim to stand for freedom or openness without welcoming all?

If MS' permissive license doesn't meet the criteria, don't pass it. Don't shun
it solely because it is from Microsoft. That's called hypocrisy.


[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: Anonymous on Wednesday, August 22 2007 @ 11:50 AM EDT
I think it should be a matter of 'Do the licence terms meet the OSD, and is the
licence differentiated enough to deserve acceptance given the current OSI
efforts regarding non-proliferation of licenses.'.

There's a mail in the thread that succinctly states one of the reasons why:

"My only point is that if we don't keep the approval discussion to the
license itself, then we are going to have bigger issues than this. The
basic issue is: If we hold attacks against the GPL by Microsoft against
them in these procedings then it becomes reasonable to hold attacks
against *any other* OSI-approved license by any other submitting
organization. Do we want to open this door even a little?"

It's also a fair-dealing issue, in my mind.

We have at least two possible conditions:
a) The OSD is written such that licences that meet the definition cannot
possibly have subversive effects towards the ends that the OSD is there to
promote, or
b) not A.

if the case is Not A, then there's an issue in the OSD. If that's the case, then
the OSD should be fixed, rather than discriminating against license submitters
based on non-OSD criteria.

Note that I am not saying that the OSD is broken, I'm just saying that, if it
is, then that should be fixed, rather than causing all sorts of other issues by
rejecting based on non-OSD criteria

And, of course, there may be other cases besides A and Not A - yell 'em out if
you think of any - I don't want to get stuck in a false dichotomy here.

[ Reply to This | # ]

OSI has a duty to the community
Authored by: JJSg on Wednesday, August 22 2007 @ 01:07 PM EDT
An Open Source license is much more than a simple contract. It says a great deal about the organization backing it. When the GPL, Apache, Mozilla, MIT, or BSD licenses are applied to software, there is an understanding of the intentions of the developers because the organizations backing those licenses have an honorable history of dealing with other developers and end users.

The same cannot be said of Microsoft. Take a good hard look at each item in this partial list of Microsoft's past and current actions:

  • Entered into contracts with small companies and then stole their technology forcing them to sue MS in expensive court cases--this has happened multiple times
  • Has been found guilty of abusive monopolistic practices in the US and the EU
  • Prevents alternative OSes from being pre-installed by threatening manufacturers in various ways
  • Uses non-standard features with standard protocols, making compliant products appear to be broken
  • Refuses to implement the OSI approved standard, ODF, and has instead pushed a different specification that is riddled with proprietary requirements using methods that are the antithesis of developing international standards
  • Patent threats ...
  • Ernie Ball ...

These are not merely aggressive business practices. They are repeated dishonest, even illegal, actions. To engage MS we have to trust them to honor their commitments, and that is not possible in light of their past and current actions.

If the OSI approves any MS license, the message is that the Open Source community approves of this kind of behavior. And if that happens, then the OSI is most definitely mis-representing the FOSS community.

Later . . . Jim

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Realities of Trademark Law
Authored by: Anonymous on Wednesday, August 22 2007 @ 02:39 PM EDT

PJ wrote:

Is there any reason for OSI to ignore reality factors, some of which Asay enumerated himself?

Fair question. Yes, there is.

OSI operates a certification mark program (for the "OSI Certified" mark) within the confines of trademark law. If it wishes to retain title to that mark, which is regulated by the Lanham act and sundry bits of administrative law -- which it certainly does wish, by the way -- it needs to conduct the certification program in accordances with its stated criteria, and not use it as a software industry cudgel.

A great many people misread the OSI approved licences list as a set of good-practices endorsements. That's an error. It's nothing of the kind. There are quite a number of really bad, or insignificant/redundant, or just downright silly licences that are on that list because the OSI Board (advised by members of the license-discuss mailing list) judged them at one point to comply with the terms of the OSD, as it existed in that day. (E.g., some licences on that list violate OSD#10, technological neutrality, because they were approved before OSI realised the need for adding OSD#10.) They were approved not because of being good licences -- they weren't -- but rather simply because they complied with the Open Source Definition.

Over time, it will probably become obvious that MS-PL and MS-CL are merely yet more additions to the horde of insignificant/redundant licences that, nonetheless, do pass OSD muster. They aren't innovative or particularly useful, though they do have the minor excellence of brevity. It will also probably become obvious that Socialtext's CPAL, to name another recent example, is just plain bad -- but likewise passes OSD muster. (I call it bad because it trivially impairs usage, while simultaneously utterly failing in its probable goal of being a copyleft licence within the ASP industry. It manages to be a simple permissive licence within that deployment model, with a minor annoying advertising clause, which plainly was not the drafters' intention.)

If in fact OSI suspects that Microsoft's real purpose is to cause harm....

...then, expose their harmdoing to public awareness, and employ the remedy that free / open source software always uses, of saying "No thanks; given those conditions of use, we'll either do without your code, or write or commission replacements under terms more to our liking.

There's really nothing new, here. However, if OSI were to surrender the integrity of its certification program, that would be something new, and particularly bad. Which is easily a sufficient reason for that not to occur.

By the way, I've sent you, and MathFox, and the other site admins five polite, periodic reminders over the last month that your domain registration for is rapidly approaching the need for renewal. If you for some reason don't want to send me the requested "Yes, we know" acknowledgement via return e-mail, perhaps you wouldn't mind doing it here? Thanks, and thank you for the awesome achievement that is Groklaw.

(P.S.: October 3, by the way. As the saying goes, dates in calendar are closer than they appear.)

Best Regards,
Rick Moen
(speaking only for himself; not an OSI spokesman, just a grunt longtime participant on license-discuss)

[ Reply to This | # ]

The Snake and the Penguin
Authored by: Anonymous on Wednesday, August 22 2007 @ 02:50 PM EDT
While i'm not familiar with Matt Asay, since I shuffled CNET into oblivion years ago, given his background, I wonder what the cause for his disingenuous plea is. It reminds me of the parable of the snake and the rat, which in this case becomes a penguin:

A penguin that needed to escape the flooding marsh where he lived. (forget that penguins don't live in marshes or alongside rats). Standing on the soggy bank of the rising river, he was offered a ride on the back of a snake who swam by and said he'd ferry the penguin to the other side so he could escape to higher ground. Initially, the penguin refused, claiming that the snake would likely bite the penguin halfway across and eat him. The snake promised that he simply couldn't take advantage of such a situation given the circumstances and that the penguin would be safe with him. The penguin climbed aboard the snake's back, and off they went.

Halfway across the river, the snake turned around and sank his fangs into the penguin. As he lay dying on the back of the snake, the penguin asked the snake why he had done it.

"Because I'm a snake," the snake replied. "It's what I do."

[ Reply to This | # ]

I don't agree.
Authored by: Sean DALY on Wednesday, August 22 2007 @ 04:34 PM EDT
>> ...businesses choose not to use GPL licensed software because
>> it is too difficult for them to accept the terms and still
>> remain competitive in the marketplace, at least with their
>> current business models.

This may be true for companies in the software business, but it's not at all
true for all other companies. I work for a Fortune 500 company which, despite
initial internal opposition to non-Microsoft software, has embraced GPL
application software. It is true that I didn't talk about the four freedoms when
championing the first GPL project; I talked about how the budget was manageable,
how the timeframe for deployment was manageable, and how the risks were reduced
-- in other words, what I have always talked about when preparing a major IT
project. That said, I spent a lot of time explaining the FOSS model to my
company's legal department, until the day they accepted to replace the
corporation's boilerplate copyright ownership clause on subcontracted
development to a clause renouncing any such claim and thus compatible with the
GPL. Five GPL projects later, my company's financial people have understood the
clear benefits of FOSS and don't have any concern that competitors in our
industry might benefit from the ongoing indirect contributions we are making
through our integrators.

Sean DALY.

[ Reply to This | # ]

Expensive lawyers and simple informal English in legal documents.
Authored by: Anonymous on Wednesday, August 22 2007 @ 06:03 PM EDT
My impression of the wording in the MS-PL license is that the language is odd
for a license. It is too simple, too informal, and too imprecise.

When someone hires an expensive lawyer and they produce a legal document in
simple informal English, then beware. It usually means they are trying to use
the ambiguity of informal English to obscure something in the text.

[ Reply to This | # ]

f%!# OSI, they have no credibility left
Authored by: Anonymous on Wednesday, August 22 2007 @ 08:54 PM EDT
OSI lost all credibility when they approved the CPAL. As far as I'm concerned,
they are no longer the standard-bearer for anything, nor does their
certification mean anything.

[ Reply to This | # ]

Ms-PL Doesn't Meet OSD Requirements
Authored by: Anonymous on Wednesday, August 22 2007 @ 09:09 PM EDT
The Microsoft Permissive License (Ms-PL) doesn't meet the Open Source Initiative (OSI) Open Source Definition.

OSD says:

"...2. Source Code

The program must include source code, and must allow distribution in source code as well as compiled form. ..."

Ms-PL says:

"... (D) 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."

Did you notice that distribution of source is optional under Ms-PL? Since OSI's OSD *requires* that source code be included, Ms-PL is not OSD compliant.

[ Reply to This | # ]

Why, Why, Why OSI?
Authored by: tknarr on Wednesday, August 22 2007 @ 10:37 PM EDT

I think Matt Asay provides the best example of an answer to his own question of why Microsoft's license isn't being welcomed with open arms. He and Hilf begin by claiming the OSD says something it plainly doesn't, and then proceed to try and convince everyone else to play by their statement rather than by the OSD's. And this is at the very start, when one would presume Microsoft would be on it's best behavior and trying to convince people it's really being honest this time. Yet that best behavior starts by twisting someone else's words. If that's how they start, are they going to get any better with time? And if that's how they start, are we really unjustified in worrying that they're also going to take a similar approach in the license itself and in how they interpret it in the future? The best way to judge someone is by their actions: they'll likely do in the future as they have done in the past. Yes, people can change, but generally they have to prove it by changing and acting accordingly.

[ Reply to This | # ]

    If IBM and Sun, why not Microsoft?
    Authored by: Wesley_Parish on Thursday, August 23 2007 @ 08:01 AM EDT

    Because, face it, at one stage neither of those other two companies had a reputation for being nice to competitors.

    And both of them have had vanity licenses approved by the OSI.

    Speaking seriously, if the Microsoft Permissive License does fit the Open Source Definition, then Microsoft is free to submit them to the OSI, and the OSI is free to accept them.

    What Microsoft is NOT FREE to do is to pretend that the requirements of the Open Source Definition are irrelevant, once the licenses have been accepted.

    For example, Microsoft is NOT FREE to claim this travesty as "Open Source" or in any way approved by the OSI, because it contains terms of licensing that directly oppose several central tenets of the Open Source Definition.

    To wit:

    You may not:
    Use the software or information derived from the software for any project related to, or to make any derivative works of the software for use with, a non-Windows Embedded CE Platform or related to a piece of hardware based on a non-Windows Embedded CE Platform.
    since that flies directly in the face of the following aspects of the Open Source Definition:
    8. License Must Not Be Specific to a Product

    The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.

    10. License Must Be Technology-Neutral

    No provision of the license may be predicated on any individual technology or style of interface.

    Though, I must confess, Microsoft has cleaned it up a bit since I complained to Sam Ramji about its horrific complexity - at one stage it was discriminating against hobbyists, saying that they had the right to the source code, but couldn't do anything serious with it without paying for it - I had suggested a dual licensing policy for MS WinCE, where the license would be the template Microsoft Community License, and where businesses could, if so they chose, buy out the rights for their version a la AT&T and IBM, or AT&T and Sun, but apparently Microsoft hasn't seen the light yet.

    They'll eventually get there. ;) It may take Microsoft going through an 90s-IBM red-ink-haemorrhaging near-death experience to shake them, though, and I suspect that is exactly what will happen! ;)

    finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

    [ Reply to This | # ]

    Parsing the MS-PL patent provisions
    Authored by: hardmath on Thursday, August 23 2007 @ 02:03 PM EDT
    There are three portions of the Microsoft Permissive License which hinge on
    patent rights, and I have to say I find a degree of discomfort with them. I'm
    focusing on the Permissive License rather than the Community License, but I
    think my comments apply equally or even more strongly to the latter (because of
    its file-by-file reciprocity).

    First off is the Definitions section which says this:

    “Licensed patents” are a contributor’s patent claims that read directly on its

    I'm not sure what "read directly on" means here, but for the sake of
    expediency I'm going to assume it has the sense of "bear directly on"
    or "relates directly to," such that the contribution could not
    properly have been made without the rights to the associated patent. Already I
    feel the need to point out the possible situation in which a contributor has
    been authorized by a separate party who holds the patent to incorporate the
    claimed method into a software program.

    Secondly, we have the Grant of Rights section, which addresses first copyright
    and then patent claims:

    (B) Patent Grant- Subject to the terms of this license, including the license
    conditions and limitations in section 3, each contributor grants you a
    non-exclusive, worldwide, royalty-free license under its licensed patents to
    make, have made, use, sell, offer for sale, import, and/or otherwise dispose of
    its contribution in the software or derivative works of the contribution in the

    This sentence is verbose, but likely I understand it best of the portions we
    look at here. Fundamentally I object to the notion that software per se can
    imbody a patentable claim, so I for one would never use this license simply for
    the aesthetic and precautionary reason that I don't wish to lend credence to
    this corporate/bureaucratic absurdity.

    However note that the statement here speaks of licensed patents. Were it not
    for the "definition" made previously we would be inclined to read the
    phrase "licenses patents" as meaning patents licensed to a developer
    that enabled the existing contribution. But recall that the
    "definition" limits the meaning of the phrase to patents owned by a
    contributor and which are specifically related to the contribution (the latter
    being a slightly fuzzy notion for me personally).

    Apart from a mention concerning preservation of notices in redistribution, the
    third and final clause that references patents is this in the Conditions and
    Limitations section:

    (B) If you bring a patent claim against any contributor over patents that you
    claim are infringed by the software, your patent license from such contributor
    to the software ends automatically.

    The thing I noticed in this passage is its selective quality. It's not the
    "all for one and one for all" philosophy that is espoused in typical
    patent pledge defenses, but a "divide and conquer" attitude as I read
    it. Hypothetically MS would be able to pick off contributors to an MS-PL'd
    package one at a time, therefore facing the best odds (for a monopoly).

    regards, hardmath

    "It's a Unix license... it's a Linux license... a Unix license... a Linux
    license" Chinatown IV: The Two SCO's

    [ Reply to This | # ]

    Why, Why, Why OSI? - Updated
    Authored by: SteveOBrien on Friday, August 24 2007 @ 09:01 PM EDT
    An interesting article related to this issue on eWeek: Microsoft's Open Source Trashware"

    From the article: "I recently took a look at Microsoft's most active open-source projects and—there's no polite way to say this—they are all junk.

    [ Reply to This | # ]

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