Re: Which license to use for MFC based software?
Lawrence Rosen wrote:
> John Cowan wrote:
> > Their licenses can reach out to control what you and your whole family
> > had for dinner on June 1, 1999. At least according to them.
>
> That is unreasonable. No court would enforce that.
>
> On the other hand, perhaps they can control what I have for dinner AFTER I
> enter into a contract to which I am bound.
And Microsoft clearly considers their EULAs to be contracts
("license agreement").
Arnoud
--
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
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license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Stephen C. North scripsit: > And if legal action isn't possible, then the contract actually > has no teeth? A fine question. My father wrote an essay about it called "Law without Force", published in a Festschrift for Hans Kelsen (a typical joke of my father's, considering that he was blatantly opposing Kelsen's legal-positivist view of the matter). To summarize his argument, we all of us go through life making and breaking endless legal contracts, cursing innumerable defective products, engaging in sales, bailments, mortgages, and other legal events -- and yet most of us never sue or are sued. The sheriff that, according to Oliver Wendell Holmes Jr., stood behind all of this is, in my father's words, "a rank metaphysical spook". Enforcement of a contract represents the failure of that contract, as divorce represents the failure of marriage. Successful contracts and marriages never see a courtroom. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com ccil.org/~cowan Dievas dave dantis; Dievas duos duonos --Lithuanian proverb Deus dedit dentes; deus dabit panem --Latin version thereof Deity donated dentition; deity'll donate doughnuts --English version by Muke Tever God gave gums; God'll give granary --Version by Mat McVeagh -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
To what extent have the GPL or the Microsoft EULA (in its many versions) been tested in open court? If the parties to a contract decide, at some point, that they are not obliged to honor that contract or disagree about its meaning, legal action is the ultimate resolution, isn't it? And if legal action isn't possible, then the contract actually has no teeth? Stephen North -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Which license to use for MFC based software?
John Cowan wrote: > Their licenses can reach out to control what you and your whole family > had for dinner on June 1, 1999. At least according to them. That is unreasonable. No court would enforce that. On the other hand, perhaps they can control what I have for dinner AFTER I enter into a contract to which I am bound. /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Rod Dixon, J.D., LL.M. scripsit: > I suspect that if > their licenses reach out to control distribution terms of the copyright > protected work developed by the end-user...then...Houston, we have a > problem. Their licenses can reach out to control what you and your whole family had for dinner on June 1, 1999. At least according to them. -- Business before pleasure, if not too bloomering long before. --Nicholas van Rijn John Cowan <[EMAIL PROTECTED]> http://www.ccil.org/~cowan http://www.reutershealth.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Rod Dixon, J.D., LL.M. scripsit: > The problem identified sounds less like a legal issue than it does a > potential programmer's nightmare. It's both. You see, Microsoft (and all other proprietary software companies I know) absolutely deny that you have any rights in their software of any kind except those they are pleased to grant you, because you are a mere licensee of "your" copy, not an owner thereof. So if they want to say that you can only use their development tools, or their libraries, to create proprietary-software, they can. If their EULA provides that you can only use the tools while standing on your head, then that's what you have to do. If you don't like these conditions, you can return the software for a full refund, or at least so they say. > I am assuming that Carsten bought a Microsoft IDE in some visual > language, and in exchange Microsoft granted a royalty-free license > for distribution of shared libraries. Royalty-free but not unconditional. Nor is his license to use the IDE unconditional. > I am not sure what the end-user has obtained in exchange for all of > the additional conditions cited by a previous post. The right to use the software, which the end-user would not otherwise have. -- John Cowan [EMAIL PROTECTED] www.ccil.org/~cowan www.reutershealth.com Linguistics is arguably the most hotly contested property in the academic realm. It is soaked with the blood of poets, theologians, philosophers, philologists, psychologists, biologists and neurologists, along with whatever blood can be got out of grammarians. - Russ Rymer -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Quoting Rod Dixon, J.D., LL.M. ([EMAIL PROTECTED]): > This is probably true. But, the legal basis for the GPL's control over > re-distribution or subsequent distribution is that the underlying work > is either a derivative of the original or the original itself. What is > Microsoft's legal basis? Are they claiming that all works created with > their visual programming tools are derivative works of the tool? > derivative works of the visual programming language? Or, something > else? At the risk of repeating myself, I believe I saw (in the quoted EULA text) two classes of prohibitions: 1. You are prohibited from using the Microsoft toolchain as a whole (e.g., the compiler) to process codebases you or others create that are under copyleft terms. The claimed basis for this prohibition is contract obligations that you allegedly assume as a developer who purchases (e.g.) Microsoft Visual Studio.NET 2003. 2. You are prohibited from distributing components of the toolkit (e.g., runtime libraries) to be used with copylefted codebases. The claimed basis for this prohibition is Microsoft Corporation's copyright title to the referenced components. To further reiterate: The above understanding is merely what I infer from others' comments and excerpts -- and exhausts my interest in Microsoft Corporation's current proprietary-licensing follies. (I have not purchased any such tools; it is vastly unlikely that I would do so.) -- "Is it not the beauty of an asynchronous form of discussion that one can go and make cups of tea, floss the cat, fluff the geraniums, open the kitchen window and scream out it with operatic force, volume, and decorum, and then return to the vexed glowing letters calmer of mind and soul?" -- The Cube, forum3000.org -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
This is probably true. But, the legal basis for the GPL's control over re-distribution or subsequent distribution is that the underlying work is either a derivative of the original or the original itself. What is Microsoft's legal basis? Are they claiming that all works created with their visual programming tools are derivative works of the tool? derivative works of the visual programming language? Or, something else? I suspect that if their licenses reach out to control distribution terms of the copyright protected work developed by the end-user...then...Houston, we have a problem. - Rod - Original Message - From: "Stephen C. North" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]> Sent: Wednesday, June 02, 2004 8:09 PM Subject: Re: Which license to use for MFC based software? > Isn't the INTENT of the GPL to be incompatible with things like > the Microsoft EULA? And the INTENT of the Microsoft EULA to > be incompatible with the GPL? So this question is really > about defeating the purpose of these licenses. I don't see > where that's in the spirit of agreeing to them. Why do it? > > Stephen North > -- > license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 > -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Thanks for the summary, Rick. This is definitely a serious matter, if it turns away developers from open source. I still think Carsten may be able to accomplish his goals. The problem identified sounds less like a legal issue than it does a potential programmer's nightmare. The visual basic (or Visual C++) runtimes are likely to be distributed by Microsoft as part of the operating system. The lack of runtime distribution for programs made with Microsoft's visual tools was a problem with older versions of the OS, but I believe they have overcome this issue with Windows 2000 and XP, which probably have all the libraries needed for a typical app. to dynamically access a procedure in a shared library. As for the licensing issue, since Microsoft can only control the distribution of its copyright protected works, there should not be a problem with dynamic linking an open source work created in a popular visual language. As someone else suggested, if Microsoft's copyright protected libraries somehow provide a real stumbling block, there may be other shared libraries that constitute good substitutes. I am assuming that Carsten bought a Microsoft IDE in some visual language, and in exchange Microsoft granted a royalty-free license for distribution of shared libraries. Aside from the above, I must admit that it would be terrible to suggest that one may need to consult a lawyer to parse the software license(s) that may accompany Microsoft's tools, but it does sound as if there may be terms its licenses intending to bind end-users that are barely beyond nonsense. I am not sure what the end-user has obtained in exchange for all of the additional conditions cited by a previous post. - Rod - Original Message - From: "Rick Moen" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Wednesday, June 02, 2004 7:06 PM Subject: Re: Which license to use for MFC based software? > Quoting Rod Dixon, J.D., LL.M. ([EMAIL PROTECTED]): > > > Forgive me, if I am responding to the wrong question. The thread to this > > discussion is a little hard to follow. > > Indeed, and I'll attempt to remedy that, below. > > > The answer is yes, if the question is strictly analyzed as a copyright > > question involving copyright law in the U.S. It is important to > > remember that whether dynamic linking to a shared library somehow > > creates a derivative work is a question of copyright law, not the > > interpretation of a software license. Since the GPL does not reach > > modifications that do not constitute derivate works (recall that the > > GPL is supposed to be a copyright license, not a contract), the > > Copyright Act applies in the first instance. In that regard, section > > 117(a)(1) may apply; that section ostensibly would permit an end-user, > > the lawful owner of a COPY of the copyright-protected program, to run > > an open source program that calls a run-time distributed by OS > > developer like Microsoft. Even if an open source program made a highly > > unpredictable call to a shared library during run-time and one could > > persuasively argue that in that instance the dynamic linking, itself, > > created a modified work, section 117(a)(1) would seem to render the > > "adaptation" permissible as a matter of Copyright law. > > I just consulted the archive copy of Carsten Kuckuk's original post: > He mentioned his understanding that Microsoft's MFC toolkit may not > be used to create GPL codebases, and asked what alternative licensing > regime he might use comes closest to the GNU GPL without running afoul > of Microsoft Corporation's prohibitions. > > Several posts then ensued, reflecting different guesses about what > specific impediment Carsten is worried about. Nick Moffitt posted a > well-worded explanation of how to use non-GPLed libraries in otherwise > GPLed works -- reflecting Nick's surmise that Carsten had in mind MFC > libraries' licence-compatibility problem. > > Then, I posted, because I recalled a news item from two years ago, that > Microsoft had begun inserting in its SDK EULA language a clause banning > the SDKs' use in (1) developing copylefted code, or (2) distributing > their components (such as runtime libraries) in conjunction with > copylefted code. > > So, essentially, I was saying that Carsten's recollection (that > Microsoft's MFC toolkit may not be used to create GPL codebases) may > _indeed_ be correct, and that he should check its EULA for language > similar to what I cited. (I also pointed out that that EULA language > does its best to sabotage development using _all_ forms of copyleft.) > > Carsten clarified in a follow-up that he's speaking of development under > either Microsoft Visual C++ or Microsoft Visual BASIC -- so he should > indeed be concerned about the licensing of those toolkits' respective > runtime libraries, as well as of their developer-use portions. > > (In a further follow-up, he detailed sundry restrictions in the terms of > use for Visual Studio 6.0 and Visual S
Re: Which license to use for MFC based software?
Isn't the INTENT of the GPL to be incompatible with things like the Microsoft EULA? And the INTENT of the Microsoft EULA to be incompatible with the GPL? So this question is really about defeating the purpose of these licenses. I don't see where that's in the spirit of agreeing to them. Why do it? Stephen North -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Quoting Rod Dixon, J.D., LL.M. ([EMAIL PROTECTED]): > Forgive me, if I am responding to the wrong question. The thread to this > discussion is a little hard to follow. Indeed, and I'll attempt to remedy that, below. > The answer is yes, if the question is strictly analyzed as a copyright > question involving copyright law in the U.S. It is important to > remember that whether dynamic linking to a shared library somehow > creates a derivative work is a question of copyright law, not the > interpretation of a software license. Since the GPL does not reach > modifications that do not constitute derivate works (recall that the > GPL is supposed to be a copyright license, not a contract), the > Copyright Act applies in the first instance. In that regard, section > 117(a)(1) may apply; that section ostensibly would permit an end-user, > the lawful owner of a COPY of the copyright-protected program, to run > an open source program that calls a run-time distributed by OS > developer like Microsoft. Even if an open source program made a highly > unpredictable call to a shared library during run-time and one could > persuasively argue that in that instance the dynamic linking, itself, > created a modified work, section 117(a)(1) would seem to render the > "adaptation" permissible as a matter of Copyright law. I just consulted the archive copy of Carsten Kuckuk's original post: He mentioned his understanding that Microsoft's MFC toolkit may not be used to create GPL codebases, and asked what alternative licensing regime he might use comes closest to the GNU GPL without running afoul of Microsoft Corporation's prohibitions. Several posts then ensued, reflecting different guesses about what specific impediment Carsten is worried about. Nick Moffitt posted a well-worded explanation of how to use non-GPLed libraries in otherwise GPLed works -- reflecting Nick's surmise that Carsten had in mind MFC libraries' licence-compatibility problem. Then, I posted, because I recalled a news item from two years ago, that Microsoft had begun inserting in its SDK EULA language a clause banning the SDKs' use in (1) developing copylefted code, or (2) distributing their components (such as runtime libraries) in conjunction with copylefted code. So, essentially, I was saying that Carsten's recollection (that Microsoft's MFC toolkit may not be used to create GPL codebases) may _indeed_ be correct, and that he should check its EULA for language similar to what I cited. (I also pointed out that that EULA language does its best to sabotage development using _all_ forms of copyleft.) Carsten clarified in a follow-up that he's speaking of development under either Microsoft Visual C++ or Microsoft Visual BASIC -- so he should indeed be concerned about the licensing of those toolkits' respective runtime libraries, as well as of their developer-use portions. (In a further follow-up, he detailed sundry restrictions in the terms of use for Visual Studio 6.0 and Visual Studio.NET 2003. And Evan pointed out the real solution -- open source.) Carsten wrote: > I read the GPL years ago, and did not remember the fine points well, > so I was under the impression that the MFC could be a roadblock here. > Nick and the GPL FAQ make it appear as if this is not a problem. Carsten, you're confusing two issues: (1) If you were to issue your creation under GPL without additional clauses, the result would be a derivative work (your GPLed code plus Microsoft runtime libraries) that third parties could not lawfully redistribute: Doing so would violate your copyright by contravening your required conditions that recipients must agree to honour (GNU GPL). (2) Microsoft Corporation have introduced additional impediments in their _runtime libraries'_ licence terms, not to mention some of the company's development tools. Nick (and the GPL FAQ) explain how you, as copyright owner of your codebase, can remedy problem #1: You attach a licence exception, allowing use under GPL terms with the additional proviso that users may link your code with this-or-that Microsoft runtime library. That does nothing to address problem #2 (the one I spoke of), in cases where Micrsoft's licence terms are particularly heinous. To find out whether a problem exists in your particular situation, read the licence and find out. Yes, skirting that problem by switching to an open-source toolchain does impose a new and regrettable learning curve. Sorry about that. At some point in the future, we of the open source movement hope to be able to cheerfully refund your wasted time. ;-> -- Cheers, "Learning Java has been a slow and tortuous process for me. Every Rick Moen few minutes, I start screaming 'No, you fools!' and have to go [EMAIL PROTECTED] read something from _Structure and Interpretation of Computer Programs_ to de-stress." -- The Cube, www.forum3000.org -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
[snip] > Basic) and I will be releasing it under the GPL. Is dynamically > linking my program with the Visual C++ (or Visual Basic) run-time > library permitted under the GPL? Forgive me, if I am responding to the wrong question. The thread to this discussion is a little hard to follow. The answer is yes, if the question is strictly analyzed as a copyright question involving copyright law in the U.S. It is important to remember that whether dynamic linking to a shared library somehow creates a derivative work is a question of copyright law, not the interpretation of a software license. Since the GPL does not reach modifications that do not constitute derivate works (recall that the GPL is supposed to be a copyright license, not a contract), the Copyright Act applies in the first instance. In that regard, section 117(a)(1) may apply; that section ostensibly would permit an end-user, the lawful owner of a COPY of the copyright-protected program, to run an open source program that calls a run-time distributed by OS developer like Microsoft. Even if an open source program made a highly unpredictable call to a shared library during run-time and one could persuasively argue that in that instance the dynamic linking, itself, created a modified work, section 117(a)(1) would seem to render the "adaptation" permissible as a matter of Copyright law. - Rod Rod Dixon, J.D., LL.M. [EMAIL PROTECTED] opensource.cyberspaces.org DISCLOSURE STATEMENT: This e-mail communication constitutes a written document that may be subject to whatever; it was not created during the course of an attorney client relationship. The content is offered as information only, not legal advice. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Carsten Kuckuk said on Wed, Jun 02, 2004 at 08:46:20PM +0200,: > done by a German on German soil, so German copyright laws apply > which are different from US laws. And the translator was probably > paid by Microsoft Germany GmbH in Munich, not the Seattle one. Enter corporate strategy. Corporates arrange their affairs such that the principal owns all `intellectual property'. Therefore, the German subsidiary is most probably doing only marketing work; and rights in works developed by the subsidiary, if any, will vest in the US parent. That is a matter of contractual corporate arrangement; not law. So, rights would still vest in the US parent. > e-mail address @yahoo.co.in I'd guess that you're located in India. Yes. > India even a member of WIPO, and does it honor copyrights? Definitely yes. From time immemorial. > we'll have a pretty interesting legal situation here with US law, > German law, Indian law, and probably some other laws as well > applying... Only that this kind of problem is a bit off topic for this list; but relevant for most members. And do go through Rick's post in this thread. -- Mahesh T. Pai<<>> http://paivakil.port5.com Backup: The duplicate copy of crucial data that no one bothered to make; used only in the abstract. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Well, I'm in Germany, and on my computer I have a German language version of the EULA. Who holds the copyright on German language version? The translator or the original author? If the translation has been done in the US it's work for hire, and the right are most likely with Microsoft. But all good translations are crafted by translators working into their mother tongue, so this translation was most likely done by a German on German soil, so German copyright laws apply which are different from US laws. And the translator was probably paid by Microsoft Germany GmbH in Munich, not the Seattle one. Looking at your e-mail address @yahoo.co.in I'd guess that you're located in India. Is India even a member of WIPO, and does it honor copyrights? So if I send a copy of the German language EULA to you in India via the "opensource.org" mailiing list whose server is probably also located offshore (China? India? Turks and Caicos?), and Microsoft in Seattle wants to do something against this, we'll have a pretty interesting legal situation here with US law, German law, Indian law, and probably some other laws as well applying... MTP> MTP> Can't help asking - MTP> 1. Is this _license_ redistributable? ;) MTP> 2. And if you find a means of circumventing the restrictions placed on MTP>your copy of the _software_ by the license, will you be violating MTP>the DMCA? MTP> -- Mit freundlichen Grüssen Carsten Kuckuk mailto:[EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Carsten Kuckuk said on Wed, Jun 02, 2004 at 05:12:22PM +0200,: > Robert, > > I only have the German language versions on my computer. Would that be > of any help for you? > am Mittwoch, 2. Juni 2004 um 16:27 schrieben Sie: > > RO> Does anybody have a link to the Microsoft SDK EULA's in Can't help asking - 1. Is this _license_ redistributable? ;) 2. And if you find a means of circumventing the restrictions placed on your copy of the _software_ by the license, will you be violating the DMCA? -- Mahesh T. Pai<<>> http://paivakil.port5.com àâ àààâàà à. Freedom is my birth right. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Quoting Robert Osfield ([EMAIL PROTECTED]): > Does anybody have a link to the Microsoft SDK EULA's in question, I'd > like to study the document. The licensing page at which Microsoft initially made the full EULA available disappeared shortly after the story broke (June 2001) -- and you will see by visiting http://web.archive.org/web/*/http://msdn.microsoft.com/msdn-files/027/001/516/eula_mit.htm that some sort of clever forced redirect has removed it even from the Internet Archive. A number of news sites at the time removed posted copies of the EULA from their Web forums on grounds that Microsoft Corporation asserts copyright over the EULA text and that the fair use defence might not cover mirroring of the entire EULA. I would suggest calling your nearby Microsoft Corporation office, let them know you're interested in some particular product, and ask for a copy of its EULA as part of your product analysis. (For one thing, the firm has been known to apply significantly different licence texts in various parts of the world, not to mention the diversity across its product line.) In particular, please don't assume that the Microsoft trial-balloon clause of the week is in all Microsoft licences, thereafter: Some of these things vanish as quickly as they arrive. One resource to know about, though it doesn't answer your current question: The New Zealand law firm of Clendon Feeney, Barristers & Solicitors, being somewhat more certain of their ground than most news and comment Web sites, maintain an archive of the full text of proprietary software EULAs: http://proprietary.clendons.co.nz/ (Please help them expand their archive, by sending e-text of appropriate EULAs to [EMAIL PROTECTED] .) -- Cheers,"He who hesitates is frost." Rick Moen -- Inuit proverb [EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Robert, I only have the German language versions on my computer. Would that be of any help for you? Carsten Guten Tag Robert Osfield, am Mittwoch, 2. Juni 2004 um 16:27 schrieben Sie: RO> Does anybody have a link to the Microsoft SDK EULA's in question, I'd like to RO> study the document. RO> Cheers, RO> Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Which license to use for MFC based software?
Does anybody have a link to the Microsoft SDK EULA's in question, I'd like to study the document. Cheers, Robert. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
