Too Much Free Time

by Mike Masnick

Filed Under:
licenses, open source


Microsoft Accidentally Bans Its Own License From App Store?

from the nicely-done dept

It's always amusing when companies make some sort of blanket statement or policy... only to realize they did it so broadly as to go against their own interests. Then you watch them backtrack. Microsoft got itself in some hot water lately, when some people realized that the rules for Microsoft's phone app store appeared to ban certain types of open source software. The specific claim was that it said certain types of licenses were to be excluded. Among the excluded:
"Excluded License" means any license requiring, as a condition of use, modification and/or distribution of the software subject to the license, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
The only problem? This appears to cover a few of Microsoft's own licenses. As Simon Phipps points out, both Microsoft's Reciprocal License and its Public License appear to violate those terms.

Upon realizing this, Microsoft is sorta trying to backtrack on this, saying that it is reconsidering the policy, but it had, in fact, done this on purpose. Still, it's apparently open to reviewing different open source licenses, meaning that it's likely trying to figure out a way to carve out rules that allow its own licenses, but still forbid GPL software. Whether you're a GPL supporter or not (and let's avoid a "holy war" discussion), this does seem a little petty.

Of course, in this rush to "app store-ify" everything, with various gatekeepers and restrictions, sooner or later people are going to remember that they can simply avoid all of this by building web apps instead.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Torinir (profile), Feb 18th, 2011 @ 4:36pm

    Microsoft - Failing at common sense since the 80's.

    reply to this | link to this | view in thread ]

  2. identicon
    monkyyy, Feb 18th, 2011 @ 4:37pm

    *starts holy war*

    mircosoft is EVIL for attacking gpl

    reply to this | link to this | view in thread ]

  3. icon
    Steven (profile), Feb 18th, 2011 @ 4:53pm

    I hate to do this.

    I really really hate to back MS on this one but...

    There are actually potential technical problems running an app store like MS is setting up and a license that requires the distribution of source code. These are the same problems Apple ran into and, to my understanding, were part of the reason VLC was eventually pulled.

    MS rightfully is worried about the liability, as the distributer, of running afoul of some software license.

    Now, I need to go take a shower as I feel dirty.

    reply to this | link to this | view in thread ]

  4. icon
    Haywood (profile), Feb 18th, 2011 @ 5:00pm

    This is the age of the apps

    Which is why open source is going to win the battle of the smart phone. Android gives the tinkerers what they want, and they are a big portion of the market, & are the people in the know other people ask what to buy.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Feb 18th, 2011 @ 7:26pm

    Who cares Google store is trashing Apple's store now that Apple is enforcing the 30% and Google is luring them with 10%, with strong Android phones sales.

    Microsoft is not even a contender in that market and those actions will probably hurt them even further.

    reply to this | link to this | view in thread ]

  6. icon
    R.H. (profile), Feb 18th, 2011 @ 7:38pm

    Re: I hate to do this.

    Honestly, I agree with you (and Microsoft) and I understand stipulation one about the source-code bundling. That would be quite difficult to pull off but numbers two and three, regarding derivative works and free redistribution how exactly would Microsoft be on the hook for that?

    Two and three without number one sounds like a Creative Commons Share Alike license which doesn't require that you do anything but not charge. If I were to license a piece of software that way and post it in the Windows Phone 7 App Store all I (and MS) would have to do is offer it for free.

    reply to this | link to this | view in thread ]

  7. icon
    R.H. (profile), Feb 18th, 2011 @ 7:44pm

    Why not make it easy to offer source code?

    I've been thinking a bit and would it really be THAT hard to have a link on the application description page that links to a .zip containing the source code? If you make a requirement that any code licensed such that source code was required be submitted with a compressed copy of said code, then you just stick it on a site somewhere, link to it, and you're done.

    reply to this | link to this | view in thread ]

  8. identicon
    Rekrul, Feb 18th, 2011 @ 8:26pm

    There's an easy solution for MS; Simply make it part of the terms and service that only MS licenses are valid and all others are banned.

    The ONLY reason that MS doesn't do this is because they don't want the backlash it would cause. If they thought they could get away with it, that would have been the policy from day one.

    reply to this | link to this | view in thread ]

  9. identicon
    Drizzt, Feb 19th, 2011 @ 1:03am

    Re: I hate to do this.

    Well, as Microsoft constantly claims leadership in the software market they should be able to recreate something similar to what Debian (or any other Linux distribution) is using (Debian has dak to manage its archives and ensure (among other things) that for all binary packages the corresponding source package is available). But then they weren't able to implement several mail standards correctly for decades…

    reply to this | link to this | view in thread ]

  10. icon
    Nick Coghlan (profile), Feb 19th, 2011 @ 4:21am

    Banning such licenses actually makes (some) sense

    For a first cut at an app store, there's actually a really good *practical* reason to ban GPL (and GPL-like) licenses.

    The reason is that the GPL imposes the source distribution requirement on the *entity doing the redistribution*. If you're just redistributing the binaries and pointing to the location where you retrieved the source code yourself as the place to get the source, you may not have adequately discharged your obligations under the license (I know you can definitely get yourself in trouble if that original source ceases to be available but you keep distributing binaries, but I believe it can even be a technical violation of the letter of the license while the original source is still in operation).

    So, to be completely sure they're fulfilling the license conditions, MS would have to set up mechanisms to support:

    1. GPL app developers providing their source code to MS
    2. MS making that source code available to end users in accordance with the license conditions

    While those two things are obviously possible, they involve additional development work on the App store that isn't needed for the substantial volume of software that is written using either a closed source approach or a non-copyleft open source license.

    No conspiracy theories needed - just a perfectly sensible response to the possible implications copyleft licenses have for the legality of redistribution of binaries.

    Of course, if that *was* the reason, then MS should have stated it up front. Given the adversarial history the company has with copyleft licenses in general and the GPL in particular, the conspiracy theorists may still have a point.

    (Disclaimer: I am not a lawyer, just a long term open source developer who takes an active interest in the associated licensing issues)

    reply to this | link to this | view in thread ]

  11. icon
    Shon Gale (profile), Feb 19th, 2011 @ 5:30am

    That's a business plan! License yourself out of business! Haaarrrr!

    reply to this | link to this | view in thread ]

  12. identicon
    Sam, Feb 19th, 2011 @ 10:03am

    Native App Stores vs Web App Stores

    This is why sites like will beat out the Native App Stores. All of these caveats do not have to exist. Nor do app developers have to put up with their App Store parent companies taking a bite out of their rightfully earned profit.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, Feb 19th, 2011 @ 12:53pm


    In 2 years, is anybody gonna remember what WP7 looked like?

    reply to this | link to this | view in thread ]

  14. icon
    PrometheeFeu (profile), Feb 19th, 2011 @ 3:08pm

    Re: I hate to do this.

    Actually, that's bullshit. The GPL can be honored by simply having the application provide a link to the source. If the app does not do that, posting it on the app store is in violation of the application's license AND copyright. So, if a GPL app that does not provide a link is found on the app store, a DMCA takedown is sent to Microsoft who takes the app down just as it would have to do for any other copyright violation.

    reply to this | link to this | view in thread ]

  15. identicon
    Billy Wenge-Murphy, Feb 19th, 2011 @ 4:02pm

    Re: Re: I hate to do this.

    That is correct, you don't have to bundle the source. That kind of statement shows that he doesn't know much about Free and Open Source software. If you read and understand the license, you only have to make an "offer" to provide the source code - you can send it through postal mail to anyone who bothers to request it, if you please. As long as a couple people can get it cheap and easy and spread it to others, the GPL protects freedom.

    The problem with VLC - and this should be well understood by now considering how much it was covered - was in the anti-DRM provisions of version 3 (not 2) of the GPL. The developer was taking an ideological stand against DRM.

    Given that he's talking out of his ass, it follows that his "liability" comment is a similarly worthless line of discussion.

    Microsoft is an enemy of open source, plain and simple. They've been maneuvering to crush it for a long time. The early versions of the MS licenses mentioned were described by the OSI as being designed for maximum incompatibility and had to be changed before approval. Since they can't kill open source directly, they want to fragment it. Embrace, Dilute, Extinguish.

    reply to this | link to this | view in thread ]

  16. identicon
    Billy Wenge-Murphy, Feb 19th, 2011 @ 4:14pm

    Re: Re: I hate to do this.

    1: There is no bundling requirement. Stop spreading this misinformation. Read the GPL.

    As explained in the post below, you just have to provide a "written offer" to provide the source for a few years You can simply mail it to anyone who emails you (for GPLv2. For v3, you can only do the physical distribution thing if the binary is distributed that way. Otherwise you need to provide the source over the Internet. Bundling the source is always just an option and never a requirement)

    2: CC-BY-SA is "copyleft" just like the GPL and, similarly, is incompatible with the draconian terms of app stores. You have to share THE ENTIRE WORK, just like the GPL forces you to share THE ENTIRE PROGRAM.

    (you could only incorporate CC-BY, and maybe CC-BY-NC if you were charging $0)

    Of course, IANAL, but I'm also not an idiot.

    reply to this | link to this | view in thread ]

  17. identicon
    jake, Feb 20th, 2011 @ 2:57am

    Re: I hate to do this.

    You don't understand GPL then, and you also don't understand what Apple did. Apple did distribute code, but they effectively made it proprietary because they added arbitrary restriction that says user is only allowed to install program on up to 5 devices.

    Microsoft don't even want to distribute code, and there is no valid reason why they shouldn't distribute. It is just their corporate policy against Free Software. Balmer's "it is cancer" ideology and all that. Other handsets like WebOS and RIM are playing along quite nicely.

    reply to this | link to this | view in thread ]

  18. identicon
    Mark, Feb 20th, 2011 @ 12:30pm

    It seems to me that the real problem with the GPL seems to be that the GPL license automatically transfers.

    What about a license that was functionally identical, but did *not* automatically transfer? That is, the terms of the copyright are simply such that you have to have permission from the copyright holder to copy it, and that one way to secure permission to copy it is to abide by the terms of the license, which are to not restrict the recipient's ability in any way to independently gain the rights from the copyright holder to copy the software?

    Of course, the terms of the license would require that a person make the source code available and that they distribute a copy of the license with every copy of the software or derivative works. The thing is, if one doesn't agree with those terms, then they simply wouldn't have obtained any permission to copy the software, just like they normally wouldn't with any other copyrighted work unless they had otherwise acquired permission from the copyright holder.

    I dunno... just thinking out loud, I guess.

    reply to this | link to this | view in thread ]

  19. icon
    Nick Coghlan (profile), Feb 20th, 2011 @ 4:17pm


    The "provide access to the source" provisions in the GPL only kick in if you redistribute the software yourself. If all you do is *use* the software (even in modified form), you don't have any particular obligations to anybody.

    However, since an App store is all about redistribution, the vendor needs to make sure they have all their legal ducks in a row to meet the source provision obligations before they permit inclusion of GPL licensed apps (as BWM has pointed out a couple of times, this doesn't necessarily mean bundling the software, just making it available and including a notice stating its availability).

    reply to this | link to this | view in thread ]

  20. icon
    Nick Coghlan (profile), Feb 20th, 2011 @ 4:19pm

    Re: Re:

    s/bundling the software/bundling the source code/

    reply to this | link to this | view in thread ]

  21. icon
    Nick Coghlan (profile), Feb 21st, 2011 @ 1:07pm

    Re: Banning such licenses actually makes (some) sense

    Ars Technica have a more detailed write-up quoting the relevant license sections in relation to this: re-should-too.ars

    reply to this | link to this | view in thread ]

  22. icon
    Matt (profile), Feb 22nd, 2011 @ 3:00pm

    Would compliance with such a license hurt MS?

    Say MS permitted (and honored, contra Apple) the licenses it is banning. A developer writes something and applies a license that requires derivative works to supply their source and be redistributable free of charge. MS then takes the software, bundles it with DRM, and distributes it, thereby creating a derivative work.

    Does MS now have to provide the source to its DRM tech? Must the resulting (DRM'd) software be redistributable without limit and free of charge?

    I have no idea, and I'll bet MS has none either. But it does not give up much functionality to avoid the question entirely by simply banning such licenses outright.

    Is there a facility to publish apps in the Marketplace without DRM at all?

    reply to this | link to this | view in thread ]

  23. identicon
    Christopher, Dec 7th, 2011 @ 11:06pm

    Re: I hate to do this.

    You must not be familiar with how GPL works. You do NOT have to distribute the source with the executable. You merely have to make it AVAILABLE upon request. This is easily accomplished with a simple LINK to the source.

    reply to this | link to this | view in thread ]

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