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The EULA, the GPL and the Wisdom of Fortune Cookies

By Phil Albert
Jun 8, 2004 4:56 AM PT

Next time you open a fortune cookie, consider making it more entertaining. Read the fortune aloud and follow it with the words "in bed." It completely changes the meaning and adds some after-dinner fun.

The EULA, the GPL and the Wisdom of Fortune Cookies

After reading the GPL analysis FAQ prepared by Microsoft in 2001 -- apparently to discourage the use of GPL software -- I tried the fortune-cookie game to see what would happen. Every time I came across GPL in the document, I replaced it with Microsoft End-User License Agreement (EULA). The results were more than funny. They were scary.

Microsoft titled the FAQ "Some Questions Every Business Should Ask About the GNU General Public License (GPL)." You can download it from Microsoft's Web site. The URL changes, so use a search engine to find it. To do this, I first had to get copies of each license. Getting a copy of the GPL was easy enough; it comes with many open-source products as a separate text file and is available at the Free Software Foundation's Web site.

Getting a copy of a Microsoft EULA was a little trickier. It requires reading a 13-page document in a window that uses less than 10 percent of your display during the installation process. I used the EULA for Microsoft Visual C++ Toolkit 2003 because that seemed to correspond well with the issues raised in the FAQ.

Reading Microsoft's EULA

Microsoft encourages companies to read and evaluate the GPL. FAQ Number One is "Have your lawyers read the GPL?" Microsoft points out that because the GPL attempts, under certain circumstances, to impose significant obligations on licensees and their intellectual property rights, no responsible business should use GPL software without ensuring that its lawyers have read the license. Now let's see what happens when we replace GPL with the Microsoft EULA.

Have your lawyers read the Microsoft EULA? Did they explain that by distributing programs developed using Microsoft software, under certain circumstances, you agree that the programs will only operate in conjunction with Microsoft Windows platforms? And did that explain that if you license your software, the license needs to be at least as strict as Microsoft's license?

The aspect of the GPL that causes more controversy than any other open-source license is undoubtedly the requirement that the "freeing" of the license and the source code must be carried downstream to recipients of the software. In Microsoft's case, propagating restrictions are also present, just of a different nature.

Covering All That Could Go Wrong

FAQ Number Two reads: "How are you using GPL software and what obligations does it impose?" We can reasonably assume most developers of software using Microsoft tools are well aware they cannot use Microsoft's name, logo or trademarks to market their software. The FAQ presents a conundrum wherein a distributor of GPL-based software has two inconsistent licenses: one for portions of the software that does not allow for release of source code; and the GPL for other portions of the software that requires release of the source code.

However, under Microsoft's EULA, it seems the conundrum exists with a single license. The software must be such that it only runs on Microsoft Windows platforms, but the developer cannot market it by saying "runs on Microsoft Windows."

In section two of the GPL, it says that warranties are disclaimed and the entire risk as to the quality and performance of the program is with the licensee. According to the FAQ, a user of GPL software should be wary of this. However, a typical Microsoft license also disclaims warranties, including warranties of fitness, of reliability or availability, of accuracy or completeness of responses, of lack of viruses, of lack of negligence, of condition of title, quiet enjoyment, quiet possession, correspondence to description or noninfringement.

That pretty much covers everything that could go wrong. So you really have no warranty on the Microsoft software. And just to make this clear, if you somehow do find an exception, no matter how bad the software is or what damage it does, you can only get back the price of the software or US$5.00 if you did not pay for the software separately.

Additional Microsoft FAQs address the implications of combining your source code with GPL source code. When a derivative work is created using GPL source code with your own code, the resulting program must be licensed under the GPL unless you have a different license. How does that compare with Microsoft's version? If you combine your code with Microsoft's source code, what constraints are you under? It is difficult to ascertain because you cannot even get the source code.

GPL As Virus

FAQ Number Nine refers to the "viral" nature of the GPL. It is considered viral because if you combine and distribute GPL code with preexisting code, you are required to include source code for the preexisting code for all downstream licensees without additional requirements. The irony is that, under copyright law, use of Microsoft's code would cause a similar infection because all authors get to control the distribution of derivative works.

Under some versions of the EULA, you can modify elements of the Microsoft product and redistribute them, but you cannot make money from them, the same as the GPL. However, with the GPL you do not have to agree to indemnify the author for claims of infringement, which the EULA requires.

Another question asks "Does the use of GPL software reduce the acquisition value of your company?" This question implies that no one will invest in your company if you distribute products under the GPL. Given the substantial valuations of Red Hat and other open-source product companies, we know this implication is not true. Now, replace GPL with the MS EULA. What happens to the acquisition value of a company that develops products that will only run on Windows? Ask Netscape. It found out that relying on a particular operating system was a risky financial decision.

It seems that what we have here is a failure to communicate. Under the GPL, all software should be free. Under the EULA, all software should run on Microsoft platforms.

If we open our minds, the fortune cookie game can provide us with many kernels of wisdom.

Phil Albert, a LinuxInsider columnist, is a patent attorney and partner with the San Francisco office of the intellectual property law firm Townsend and Townsend and Crew LLP.

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