[Legal] Fwd: [Audacity-devel] Microsoft's EULA

[Alexandre Prokoudine]

Вот вам в копилочку забав, господа.

Пояснения. Audacity -- кроссплатформенный (Linux, *BSD, Mac OS X,
Windows) звуковой редактор, под GPL. Mezzo -- его новый звуковой
"движок", под BSD. Интересно, как они выкрутятся.

А.П.


---------- Forwarded message ----------
From: Joshua Haberman <joshua на reverberate.org>
Date: Sun, 23 Jan 2005 21:09:32 -0800
Subject: [Audacity-devel] Microsoft's EULA
To: audacity-devel на lists.sourceforge.net


On Jan 23, 2005, at 8:40 AM, James Crook wrote:
> A question: prompted by recent work on Ethereal.
>
> The Ethereal documentation states that they support VC6 but not VC7,
> 'because the license for using VC7 is incompatible with Open Source'.
> This is the first I'd heard of that.  When you're trying out the VC7
> toolkit Josh, could you take a look at the license to see if there is
> any
> truth
> in the rumour?

Interesting.  Here is what I found.

The EULA is here:

http://msdn.microsoft.com/visualc/vctoolkit2003/eula.aspx

It does have a nasty-looking clause:

"3.2  If you use the Redistributables, then in addition to your
compliance with the applicable distribution requirements described for
the Redistributables, the following also applies. Your license rights
to the Redistributables are conditioned upon your not (a) creating
derivative works of the Redistributables in any manner that would cause
the Redistributables in whole or in part to become subject to any of
the terms of an Excluded License; and (b) distributing the
Redistributables (or derivative works thereof) in any manner that would
cause the Redistributables to become subject to any of the terms of an
Excluded License. An "Excluded License" is any license which requires
as a condition of use, modification and/or distribution of software
subject to the Excluded License, that such software or other software
combined and/or distributed with such software (x) be disclosed or
distributed in source code form; (y) be licensed for the purpose of
making derivative works; or (z) be redistributable at no charge."

"Redistributables" are the sample code (which we don't care about) and
the included static libraries (which we do).

By "Excluded License" they mean the GPL and other "viral" licenses.  So
what (b) effectively says is that you can't link GPL'd programs against
Microsoft's static libraries and distribute the result.  What is
interesting is that such an action would already be breaking the
license of the GPL'd part (since Microsoft's static libraries are NOT
GPL'd), but here Microsoft says that it's breaking their license too.
Kind of moot.

Incidentally, this makes me realize that linking any GPL'd program
against non-free runtimes (which pretty much every open source program
running on Windows does) is breaking the GPL.

Moving back to the EULA, the first part of that section says basically
the same thing, but goes a step further.  It says that even your
personal license to *use* (not distribute) the software is conditioned
on you not distributing GPL'd stuff linked with their libraries.

I am not a lawyer, but this is my interpretation of what this EULA
really means.

Say this EULA didn't exist.  You compile and link a GPL'd program
against Microsoft's runtime. Then you distribute the resulting binary.
You are violating the copyright of the GPL'd program, because you are
distributing a derivative work of it, without causing it to be licensed
as a whole under the terms of the GPL.  However, you are not wronging
Microsoft, because you are allowed to redistribute their runtime,
albeit not under the terms of the GPL.

What this EULA is trying to do is give Microsoft ammunition against you
if you attempt the same scenario.  So with the EULA, you are violating
the copyright of the GPL'd software's author because the Microsoft
runtime is not available under the terms of the GPL, but you're also
violating Microsoft's EULA because of the above clause.

That's what I think they're trying to do, but I don't think it really
makes sense.  More specifically, I don't think the above scenario could
ever violate anyone's copyright except the GPL'd software's author.
Here is my reasoning: regardless of what the GPL says, it cannot
actually grant you rights to Microsoft's software unless Microsoft
themselves publish software under it.  The above clause forbids:

"distributing the Redistributables (or derivative works thereof) in any
manner that would cause the Redistributables to become subject to any
of the terms of an Excluded License."

But there is no manner in which you can distribute the Microsoft
runtime that would cause it to become subject to the GPL: only
Microsoft can do that.  The main program's license might say that
you're only allowed to distribute the main program if everything's
GPL'd, but all that means is that the distributor didn't fulfill the
GPL's requirements; the GPL can't force the other software to have a
license that it didn't already have.

----

So what does this mean for us?  Again, IANAL, but here is my opinion.

Well, first of all, Mezzo's fine because it's BSD licensed.

As far as Audacity is concerned, we can't link it statically with
anything Microsoft and distribute the result.  But that was already
true without this EULA, and with just the GPL itself.

Is it possible to dynamically link all of the Microsoft runtime?

Josh

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