Microsoft source code releases - a danger to Wine?

[Ian Pilcher]

Gavriel State wrote:

> 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.
>  


As you point out below, contract law is also involved.  Add the DMCA,
UCITA, and Bush 2.0 to the mix, and any lawyer who says he actually
knows what's legal is lying.

> 
> 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.
>  


There'a a legal doctrine whose name I can remember (I'm too young for
senior moments!) ... "inevitable contamination" or something like that.
The basic idea is that someone who had been exposed to Microsoft source
code and then worked on Wine within a given period of time would be
assumed to have used knowledge gained from that exposure.  I believe
that the burden would be on that person or the Wine project to show
the opposite.

This is what I'm really worried about.  Some well-meaning hacker takes
"Advanced Operating System Theory" at a Microsoft-beholden university
and then makes a contribution to Wine.  (The more I think about it,
I'm surprised Microsoft isn't trying harder to expose more people to
their code and license.)


> 
> 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.  
> 


Fair use?  We don't need stinking fair use!  After all, that might
interfere with corporate earnings reports.  (I'm too old to become a
communist!)


> 
> 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.
> 


Now you're really scaring me!


> 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
> 

Good link, but dated.  UCITA explicitly legitimizes most of the shrink-
wrap and click-wrap license provisions that courts have previously found
unenforceable.  It'll be interesting to see if it dies a well deserved
death, gains momentum, or (most likely) rears its hydra-like head in a
different disguise a year or two down the road.

IANAL, but I think that this is worth discussing.  Thaks for the
thoughtful response!  (Anyone on this list know a good IP lawyer who's
had an attack of conscience and wants to do some pro bono work?)

-- 
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Ian Pilcher                                         ian.pilcher at home.com
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