Isn't the "non-sublicensable" part of the MS license effectively a non-issue
since anyone in the world can take out a MS license for free? If you give me
source code, and I want to use your source code in a new program of mine, and I
will be including features covered by MS's IP, then all I have to do is take
out the free and universally available MS license and I am good to go. I will
be in exactly the same situation regarding licensing as you were. Isn't that
what the GPL says? Neither of us will be in exactly the same situation
regarding licensing as the guy (if any) you got your pre MS code from. That
may be a catch with the language of the GPL.
The MS license says quite clearly that you may distribute your source code
freely and you refers to anybody on the planet who signs the license so, your
customer can receive, modify and redistribute the source code so long as he
signs the license. This is the same as GPL requires. If I modify and
redistribute a GPL program, I have to adopt the GPL.
I think, in the forward direction, the restrictions of the MS license have the
same effect as the GPL license and do not obviously conflict (I may be missing
a subtle conflict.) I am not so sure about the backwards direction.
If your GPL customer receives source code from you and wants to use it as the
basis of a commercial, non GPL program, doesn't he have to negotiate that as a
separate license with every copyright holder backwards up the chain until he
runs into either public domain, a license that allows commercial redistribution
or he gets a license from the original author farthest up the chain? The MS
license is the same, except that, as it regards the MS IP, a commercial program
developer has to look only one step backwards, to MS. Thisis what the non
sublicensable part says, I think. As a licensee, I can't grant the right to
use MS's IP commercially. I don't think the GPL gives me that right for source
code I have received under the GPL either.
The main practical difference is that MS is more likely to go after a license
violator than most (but certainly not all) GPL authors. And MS will be able to
deploy much bigger guns if they do move.
The end customer, who only uses the executable, is under no obligation at all.
That is true of both licenses.
I am not saying the MS license should be accepted as part of an RFC package
without careful examination and consideration. I may well be missing a
critical aspect that causes trouble. But a lot of the things people have been
writing seem to me to be the result of sloppy reading or thinking about the
licenses. Take your time. Read it carefully. Read the GPL carefully.
MS was rather slow to get the license hammered out (well, maybe not by lawyer
standards). That was somewhat unneighborly of them, but the fact is we got it
when we got it and it is an important piece of the puzzle.. The committee
really ought to make sure it gets a thorough airing, even if it slows things
down a bit. Bullheadedly sticking to a battle plan when the tactical situation
has changed isn't good generalship.
IMO, a thorough airing in this case probably means some well respected,
reasonably independent, IP experienced lawyer(s) should have a good look at
both licenses and lay out the points of compatibility, conflict and ambiguity
if any. There have to be some good IP lawyers who will do this pro bono for
the sake of the internet community.
Mark Holm