[freetds] TDS versions

James K. Lowden jklowden at freetds.org
Thu May 29 11:57:02 EDT 2008

Dossy Shiobara wrote:
> 3) Applications may link to FreeTDS, which is LGPL'ed, as long as they
>    comply with the LGPL.
> My hypothesis:
> 4) re: #3, such applications are also protected as the infringing
>    portion (FreeTDS) is covered by the pledge, and applications are
>    simply consumers of FreeTDS, which is protected by the pledge.
> You think, however:
> > The fact that they distribute FreeTDS sources in no way makes them "an
> > open source project".  They're required to get an MCPP license
> > irrespective of FreeTDS's license, because they're treading on
> > Microsoft's patent and aren't a pure open-source enterprise.  The fact
> > that the closed-source portion is noninfringing is irrelevant.  
> Perhaps someone can get the FSF to get a real attorney to review this
> matter and write something that constitutes legal advice on this matter.

Thanks, that's very clear.  IANAL and I'm not giving anyone advice.  I'm
just trying to understand what Microsoft means by what it says.  I don't
see the basis for your hypothesis: 

	"You must be a natural or legal person participating in the creation of
software code for an open source project. An "open source project" is a
software development project the resulting source code of which is freely
distributed, modified, or copied pursuant to an open source license and is
not commercially distributed by its participants."

That's not the OpenLink model.  The Pledge goes on: 

"If You engage in the commercial distribution or importation of software
derived from an open source project or if You make or use such software
outside the scope of creating such software code, You do not benefit from
this promise for such distribution or for these other activities."

That is, code that uses "open source project" code explicitly does *not*
acquire The Pledge in so doing.  Open source projects are covered;
projects that use them are not.  

I'll go further: we're accustomed to talking about *distribution*, because
we're accustomed to thinking about licenses, which are governed by
copyright, which covers *works*.  But a patent covers an *idea*; the work
is irrelevant, as is who wrote the code or how it's licensed, as is
whether or not it's distributed!  If your "computer-implemented system"
implements MARS on the TDS protocol, no matter who wrote the code or its
license, it infringes on Patent 7,318,075.  Period.  

Think about that for a second.  It doesn't matter how you use FreeTDS
(once MARS becomes part of it, if it does).  If you're, say, Bank of
Morocco and you use FreeTDS as part of DBD::Sybase in an internally
developed application, you *must* pony up for an MCPP license.  Because
you're infringing on the patent and are not part of an "open source
project".  You only "make or use such software outside the scope of
creating such software".  Ka-ching!

Funny, right?  You can safely write the code, and the company you work for
can't use it.  

As Craig says, that puts quite a dent in the freedom inscribed in the



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