Subject: RE: DEPLOY: Microsoft Royalty Free Sender ID Patent License FAQ

From: "Ryan Malayter" <[email-masked]>
Date: Thu, 26 Aug 2004 13:24:23 -0500

[wayne]
> The possibility that requiring every single user of qmail to get a
> signed license from Microsoft is a reason for concern.  

IANAL, but it is quite clear to me that the MS license requires nothing
of the sort:

"For clarification, this Agreement does not impose any obligation on You
to require the recipients of Your source code implementations of such
Licensed Implementations to accept this or any other Agreement with
Microsoft. Your End Users may use the Licensed Implementations licensed
in this section 2.2 or in section 2.1 that they receive directly or
indirectly from You without executing this Agreement. This Agreement
will be available to all parties without prejudice."

So, a qmail pactch consisting of source code containing the PRA is a
source code implementation. Creators of such soruce code implementations
will need to sign the MS license to include PRA, but *users* do not.

The trademark requirement for what is considered a "licensed
implementation" seems a bit onerous. But it says NOTHING about it being
a "registered trademark", and mentions no jurisdictional requirements.
So make up a brand name for your qmail patch, and you have a trademark.
All is right with the world.

From the USPTO Trademark FAQ:

    Do I have to register my trademark? 

    No, but federal registration has several advantages, including 
    notice to the public of the registrant's claim of ownership of 
    the mark, a legal presumption of ownership nationwide, and the 
    exclusive right to use the mark on or in connection with the 
    goods or services set forth in the registration.

and

    What are common law rights? 

    Federal registration is not required to establish rights in a 
    trademark. Common law rights arise from actual use of a mark. 
    Generally, the first to either use a mark in commerce or file 
    an intent to use application with the Patent and Trademark Office 
    has the ultimate right to use and registration. However, there 
    are many benefits of federal trademark registration. 

--
Ryan

---

From: Mark Shewmaker <[email-masked]>
Date: Thu, 26 Aug 2004 17:56:22 -0400

> IANAL, but it is quite clear to me that the MS license requires nothing

IANAL also, but to me it looks like the qmail users, (or at least the
admins installing qmail), *would* have to sign Microsoft's license.

Section 2.1 grants signatories the right to "make" object code versions
of implementations.  It also grants them the right to "use" the object
code versions they made.

Since section 2.1 specifically separates the notion of a right to "make"
an object code version from the right to "use" an object code version,
to me that implies that you can't assume that just because you've got
one right that you've also got the other.

> "Your End Users may use the Licensed Implementations licensed
                      ^^^ 
> indirectly from You without executing this Agreement.

In the section you quoted, they grant End Users a "use" right without
any mention of a right to "make" object code.

I can only conclude that End Users aren't allowed to compile source code
implementations into object code, but that they are allowed to use the
source code if such use doesn't require compilation.

So bash scripts are okay, but qmail is right out, as are source RPMS,
perl scripts (as perl creates temporary object code), and python scripts
(as python not only compiles code into object files, but saves the
object code in .pyc files).

Furthermore, not only could End Users not install qmail, they also
couldn't install source distributions such as gentoo and the various
BSDs, if those distributions were to incorporate SenderID.

And heaven help us if anyone out there considers sendmail.cf to be
object code, as then the license wouldn't even allow an End User to
trigger the m4-generation of a SenderID-supporting sendmail.cf.

---

From: wayne <[email-masked]>
Date: Thu, 26 Aug 2004 20:34:27 -0500

> IANAL, but it is quite clear to me that the MS license requires nothing

I think it would be really cool if you are right.  A qmail patch is
basically taking a hunk of source code and installing it into another
program, possibliy modifying the patch code in order to make it work
with the modified program.  So, if I, as a small ISP or whatever, want
to add SenderID functionality to a specialized program that I have,
all I would need to do is take the qmail patch, modify it as needed to
make it work with my specialized program, and not have to worry about
a license.  Or, at least not have to worry unless I decide to
redistribute it.

However, my gut feel says that MS has not intended such a thing.

> will need to sign the MS license to include PRA, but *users* do not.

Can a qmail patch be a licensed implementation?  I don't think so.

In particular, take a look at section 2.2 again:

   2.2 _Source_Code_Distribution_ You also have [...], a [...]
   license to distribute or otherwise disclose source code copies of
   such Licensed Implementation licensed in Section 2.1 only if You
   [....]

This seems to say that a source code distribution can only be a
Licensed Implementation if you can take the source code, compile it
into object code and have a Licensed Implementation as per section
2.1.

> So make up a brand name for your qmail patch, and you have a trademark.

Yeah, I agree, trademarks, are granted automatically.  I raised the
issue because it again points to my belief that MS is intending this
license to be applyed to a classic software product, that functions
and does something useful, not just random snip-its of code.

I'm not even certain that a library that contains the PRA algorithm
would qualify as a Licenced Product because you must implement all
required parts of the SenderID specification.  I believe that would
include things like the SUBMITTER functionality, which may mean that
you can only have MTAs as Licensed Products.  I haven't thought about
that part very hard though, take it with a grain of salt.

-wayne