Microsoft source code releases - a danger to Wine?

[Gavriel State]

Ian Pilcher wrote:
> 
> According to Slashdot, Microsoft has released the Windows CE source code
> under one of their "shared source" licenses.  Needless to say, it would
> be an *extremely* bad idea for anyone associated with the Wine project
> to look at it.

While I agree that it is probably not a great idea to look at the CE code
at this point, Microsoft's 'Shared Source' license is *very* interesting 
in a number of respects.  First and foremost, the license is by far the
most simple and straightforward software copyright license that I have 
ever seen.  There is barely a hint of legalese about it.  

As such, it appears to me that there may be some interesting ways in 
which the license can be exploited to benefit Wine.  8-)

Note that I'm not suggesting that anyone go out and do this without 
spending a fair bit of time (and money, unfortunately) with a lawyer.
Certainly, no one at TransGaming is going to be downloading or looking
at those sources.

So - on to some analysis of the license.  Everything below is based 
only on my own personal understanding of the legal issues involved, 
nothing more.  

     This License governs use of the accompanying Software.

Well, first off, copyright law generally governs copying, not use.  
Attempts to overreach the provisions of copyright law through additional
clauses in shrink-wrap/click-wrap and other contracts have been turned
aside in some court cases.  In the US, federal copyright law trumps state
contract law, from what I've read.  Thus, the license starts off on shaky 
ground.
 
     You can use this Software for any non-commercial purpose, including 
     distributing derivatives. Running your business operations would not 
     be considered non-commercial.

Again, the use issue rears its head.  Another interesting question here is 
the one of derivatives.  It is possible that knowledge gained by study of
the source code, which is then applied to Wine, would not in and of itself
cause Wine to become a 'derived' work, assuming that no actual source code
was used.  It is a somewhat grey area that I don't know very well, but 
it may be worth investigating.
 
     For commercial purposes, you can reference this software solely to 
     assist in developing and testing your own software and hardware for
     the Windows CE platform.

Here again, we have the usage issue, as well as the platform-restrictive
clause for commercial users.  The platform restrictions may constitute 
anti-competitive 'copyright misuse', and thus be unenforceable.  The
language used here is also interesting - they say 'reference', rather 
than 'use'.  I suspect that they are trying to explicitly restrict
efforts like Wine from even studying their code - an apparent violation 
of 'fair use' provisions of copyright law.  

The rest of the license is pretty straightforward with nothing that's
too objectionable that I can see immediately.  I won't bother going 
through it in detail.

That said, nothing I can see appears to restrict someone who has accepted 
their license from answering explicit questions we might have, so long as 
they are not doing so for hire (thus 'commercially'), and so long as they 
don't distribute source code.  A fair bit of useful knowledge might be 
gained in that way, albeit slowly.

Anyhow, a useful link for anyone interested in more background on some 
of the legal issues is: 
   http://www.richmond.edu/~jolt/v1i1/liberman.html

Take care,
  -Gav

-- 
Gavriel State, CEO
TransGaming Technologies Inc.
http://www.transgaming.com
gav at transgaming.com