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[Fedora-legal-list] Fedora and MS-PL (Dynamic Language Runtime)



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].

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.

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.

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.

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)



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