On Sat, 2009-12-05 at 13:31 -0500, saulgoode@xxxxxxxxxxxxxxxxxxxxxxxxxxxxx wrote: > I apologize if resurrecting such an old thread is considered poor > etiquette for this list; however, it seems that the discussion in this > thread served as a predicate for the MS-PL being deemed acceptable for > inclusion in Fedora[1], and I wish to raise a question about that > decision[2]. I didn't know that. I'm glad it has had such an effect. > While the discussion in this thread effectively addressed the > incompatibility between the Microsoft Public License and GNU's General > Public license, it focused upon terms of the GPL and whether they > might preclude inclusion of MS-PLed code in Fedora. I feel it is far > more incumbent to examine the terms and conditions of the MS-PL and > consider whether those terms can be satisfied should both MS-PLed code > and GPLed code be provided together on a CD/DVD or in a corresponding > ISO file. I'm not certain how they are mutually exclusive aside from where inter-linking within the same application is concerned... > In brief, my concern lies with the fact that there is no explicit > exception included in the MS-PL for "collective works" or > "compilations" as defined under U.S. copyright law[3]; instead the > MS-PL is based[4] upon the U.S. Copyright Act's definition of > "derivative works"[5] and a license-explicit definition of a > "contribution"[6], and it claims for its applicable scope all > derivative works of the contribution. I still do not see how this applies to applications which do not link between one another, unless you are implying that an .iso file is not a collection of separate works, but is instead a work in itself. If this is the case, then MS-PL and GPL are the least of our problems. We run into issues with OpenSSL licenses, LGPL vs GPL, etc. I think the fact that this has not been a problem implies that an .iso is not considered a single work, but a collection. > This is problematic for a Fedora distribution because, though Fedora > should rightly fit the definition for a "compilation", it may still > qualify as a "derivative work" as those terms are defined in the U.S. > Copyright Act. The two classifications are not of necessity mutually > exclusive; as stated in the congressional footnotes to the Copyright > Act[7]: > > "Between them the terms 'compilations' and 'derivative works' > which are defined in section 101, comprehend every copyrightable > work that employs preexisting material or data of any kind. > THERE IS NECESSARILY SOME OVERLAPPING BETWEEN THE TWO, but they > basically represent different concepts." (emphasis mine) > > Further coverage of the legal uncertainty at to whether a compilation > (or even collective work) can be considered a derivative work can be > found in the Copyright Office's "Copyright Registration for Derivative > Works" circular[8 (PDF)], and in the first chapter[9] of Lee A. > Hollaar's "Legal Protection of Digital Information". > > Though I am an engineer (not a lawyer), it seems the distinction being > made in the Copyright Act phraseology is owing to the legislature's > desire to clarify the durations and protections of copyright obtained > in the constituent parts of a collection or compilation, and not a > presumption of the law to interfere with the exclusive rights of the > copyright holder to decide the terms and scope under which his work > might be licensed. In other words, I find it entirely conceivable that > a court would find that it is within an author's rights to prohibit > distribution of his work in collections/compilations containing other > works which the author may find objectionable. As I said above, if this is the case, we'd better stop shipping software collections on iso files ;) > While my interpretation is by no means conclusive (and certainly not > authoritative), it should be noted that it is this legal uncertainty > which has prompted other reciprocal licenses to provide explicit > exceptions for "collective works". This is addressed employing the > term "mere aggregation" in Section 3 of the GPLv2[10], and the term > "aggregate" in Section 5 of the GPLv3[11] and in Section 7 of the GNU > Free Document License[12]. It is addressed in the Creative Commons > Share-Alike by providing a license-specific definition of a > "collection" and exempting such collections from reciprocity terms[13]. > > I won't speculate as to whether it was the intent of the authors of > the Microsoft Public License to consider "mere aggregation" to be > excluded from the scope of their reciprocal terms and conditions[14], > but regardless of their intent it seems that lack of an exception > being explicitly provided within the license itself may potentially > lead to a court decision that inclusion of both MS-PLed and GPLed > software within a Fedora distribution constitutes copyright > infringement -- not because the terms of the GPL weren't met, but that > those of the MS-PL were not met. > > Any clarification on this issue would be appreciated. > > Regards. > > > > ---------------------------------- > [1] http://fedoraproject.org/wiki/Licensing#Software_License_List > MS-PL listed under "Software Licenses that are OK for Fedora" > > [2] > https://www.redhat.com/archives/fedora-legal-list/2009-August/msg00017.html > "The MS Public License is acceptable for Fedora, Free but GPL > incompatible. I'm adding it to the table now." -- Tom Calloway > > [3] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html > "A 'collective work' is a work, such as a periodical issue, anthology, > or encyclopedia, in which a number of contributions, constituting > separate and independent works in themselves, are assembled into a > collective whole. > "A 'compilation' is a work formed by the collection and assembling of > preexisting materials or of data that are selected, coordinated, or > arranged in such a way that the resulting work as a whole constitutes > an original work of authorship. The term 'compilation' includes > collective works." -- USC Title 17 Section 101 > > [4] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL > "The terms 'reproduce', 'reproduction', 'derivative works', and > 'distribution' have the same meaning here as under U.S. copyright > law." -- MS-PL: Definitions > > [5] http://www.law.cornell.edu/uscode/usc_sec_17_00000101----000-.html > "A 'derivative work' is a work based upon one or more preexisting > works, such as a translation, musical arrangement, dramatization, > fictionalization, motion picture version, sound recording, art > reproduction, abridgment, condensation, or any other form in which > a work may be recast, transformed, or adapted. A work consisting of > editorial revisions, annotations, elaborations, or other > modifications which, as a whole, represent an original work of > authorship, is a 'derivative work'." -- USC Title 17 Section 101 > > [6] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL > "A 'contribution' is the original software, or any additions or > changes to the software." -- MS-PL: Definitions > > [7] http://digital-law-online.info/lpdi1.0/treatise6.html > "Between them the terms 'compilations' and 'derivative works' > which are defined in section 101, comprehend every copyrightable > work that employs preexisting material or data of any kind. > There is necessarily some overlapping between the two, but they > basically represent different concepts. A ?compilation? results > from a process of selecting, bringing together, organizing, and > arranging previously existing material of all kinds, regardless > of whether the individual items in the material have been or ever > could have been subject to copyright. A ?derivative work,? on the > other hand, requires a process of recasting, transforming, or > adapting ?one or more preexisting works?; the ?preexisting work? > must come within the general subject matter of copyright set > forth in section 102, regardless of whether it is or was ever > copyrighted." FN31: H.R. Rep. No. 94-1476 > > [8] http://www.copyright.gov/circs/circ14.html > > [9] http://digital-law-online.info/lpdi1.0/treatise6.html > > [10] http://www.gnu.org/licenses/old-licenses/gpl-2.0.html > "In addition, mere aggregation of another work not based on > the Program with the Program (or with a work based on the > Program) on a volume of a storage or distribution medium > does not bring the other work under the scope of this > License." -- GPLv2 > > [11] http://www.gnu.org/licenses/gpl.html > "Inclusion of a covered work in an aggregate does not cause this > License to apply to the other parts of the aggregate." -- GPLv3 > > [12] http://www.gnu.org/licenses/fdl.html > "When the Document is included in an aggregate, this License > does not apply to the other works in the aggregate which are not > themselves derivative works of the Document." -- GFDL > > [13] http://creativecommons.org/licenses/by-sa/3.0/legalcode > "A work that constitutes a Collection will not be considered > an Adaptation (as defined below) for the purposes of this > License." -- CC-SA > [14] http://www.microsoft.com/opensource/licenses.mspx#Ms-PL > "If you distribute any portion of the software in source code > form, you may do so only under this license by including a > complete copy of this license with your distribution. If you > distribute any portion of the software in compiled or object > code form, you may only do so under a license that complies > with this license." -- MS-PL Section 3d) > > > _______________________________________________ > Fedora-legal-list mailing list > Fedora-legal-list@xxxxxxxxxx > https://www.redhat.com/mailman/listinfo/fedora-legal-list
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