Microsoft to subborn subversion of the Apache Software Foundation (ars technica) [LWN.net]

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 25, 2008 21:24 UTC (Fri) by AlexHudson (guest, #41828)
In reply to: Microsoft to subborn subversion of the Apache Software Foundation (ars technica) by vblum
Parent article: Microsoft to sponsor the Apache Software Foundation (ars technica)

As far as I can tell, the OSP itself hasn't changed - just MS's FAQ on it. So either you have
to believe that it was always ok in the first place (and, I guess, go along with
OpenOffice.org et al), or you believe that MS are lying and it still doesn't offer the
necessary rights. 

Groklaw I would trust about as far as I can sneeze their website on this issue, but I don't
understand why PJ has suddenly u-turned. Trying to make an FAQ update look like a license
change to back-pedal quietly, perhaps?

(Log in to post comments)

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 25, 2008 21:54 UTC (Fri) by rahvin (subscriber, #16953) [Link]

That FAQ itself becomes legal protection. By affirming that GPL is protected in the FAQ they
create legitimate defense against action by Microsoft because they now say that the language
of the agreement says as much. As this isn't a contract the Judge isn't limited to the plain
language of the "promise" and can consider other sources of information such as Microsoft's
own FAQ where they try to explain the agreement in plain language. This promise and FAQ on the
promise creates a legal expectation that MS won't sue, if they do sue they could probably
terminate rights at the cost of reimbursing anyone that spent money or took reasonable actions
based on this promise.

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 25, 2008 22:15 UTC (Fri) by AlexHudson (guest, #41828) [Link]

It creates a potential defense, but it doesn't change the language of the OSP, or override it
- the FAQ isn't legal advice.

I think the problem was that without that statement, there was sufficient gap between people's
interpretation of the OSP and what it actually said to argue that it wasn't good enough. I
think that gap has narrowed a lot.

OSP GPL compatible now?

Posted Jul 25, 2008 23:46 UTC (Fri) by mjw (subscriber, #16740) [Link]

It would be interesting to know if that FAQ entry covers all the issues discovered by the
SFLC: http://www.softwarefreedom.org/resources/2008/osp-gpl.html

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 28, 2008 3:37 UTC (Mon) by JoeBuck (subscriber, #2330) [Link]

On the contrary, an FAQ officially published by Microsoft constitutes a promise. If the original license didn't permit something, but an official document permits it, it provides a legal defense.

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 28, 2008 11:03 UTC (Mon) by AlexHudson (guest, #41828) [Link]

"On the contrary"? I agree it provided a defence. I guess maybe I'm less certain that a
paragraph in a FAQ trumps the actual legal text than you are...

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 28, 2008 7:08 UTC (Mon) by AJWM (guest, #15888) [Link]

The defense would be "promissory estoppel".  If MS tries to sue, they are "estopped" (legalese
for stopped, more or less) by the promise they made in the FAQ.

The basic principle is that it's unfair, unjust (and impolite) to tell somebody it's okay to
do something and then turn around and sue them for doing it.

IA,however,NAL

Microsoft to subborn subversion of the Apache Software Foundation (ars technica)

Posted Jul 31, 2008 2:40 UTC (Thu) by lysse (guest, #3190) [Link]

As I understand it, it's a little more subtle than that (at least under UK law, which I have studied formally but am not qualified in). If you have the right to enforce a particular contract, or part thereof, and you promise not to pursue that right for a particular length of time, and people rely on that promise, you are estopped from then going back later and saying "actually no, I did want to enforce that clause after all". You can change it in the future - you can say "I will be enforcing this clause from now on"; you aren't bound by your promise then to forever forswear from enforcement - but you cannot pursue action retroactively when you said you wouldn't, even though you legally had the right to do so at the time.

But basically, yes - the law frowns on setting contractual bear traps for people, and the doctrine of promisory estoppel is what will prevent your bear trap from catching anyone.