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Open source development prohibited with MASM ?!? (Announce)

posted by Steve Homepage E-mail, US, 16.10.2007, 13:35

> > Latest MASM versions are not free! Microsoft prohibits MASM's use for
> > developing open-source software.
>
> As far as I know, it's Steve Hutchinson
> (http://www.masm32.com/) who prohibits this, not Microsoft.
> Where you've read this and for which version?
"Any person, party or entity that undertakes any form of legal action whatsoever against the project, its authors, the owners and/or copyright holders of any software contained in the project is licenced to completely and unconditionally remove the software from their computer(s) and nothing else."

I will swear as a matter of law and English grammar that this is garbage, especially "licenced to completely and unconditionally remove the software from their computer(s) and nothing else." This implies that 1) a license could be required to remove software from a computer, and 2) that software might be removed from something other than a computer, but is not allowed to be, or maybe, not 2), but 3) only software and nothing else can be removed from a computer (which means, don't remove that old dead hard drive, etc.). Total nonsense. (I would guesss that they meant that anyone who brings legal action against them is not permitted to use MASM, and must remove it from computers - but they didn't say that, and what is not said is not binding.)

As a practical matter, in present company, this is a killer: "You cannot use the MASM32 Project to write software for Non-Microsoft Operating Systems." But how could they prove a violation? If a prog works under MS-DOS, but also under FreeDOS, etc., then their only remedies would be to teach programmers how to 1) write to undocumented and unique features of MS-DOS, and 2) break other OSes. However, the truth is, they will not do 1), and if they tried 2), they would face legal action from owners and users of the other DOSes.

This is not on solid legal ground: "The MASM32 project cannot be used to create open source software or any other project under any form of licence that requires the user of the MASM32 project to surrender the rights they are afforded under the MASM32 licence. In particular the MASM32 licence completely excludes projects licenced under the GNU organisation's published GPL licence and/or variants."

This turns "rights" into requirements. It is true that some other licenses do not permit charging money, but, and this is important, it is not required by law that anyone charge money for anything - not even in the most capitalist of countries. It is as legal to give away software for free as it is to give away any other property, including actual money.

If a contract (what a software license really is) that requires giving something away for free is entered into voluntarily, then that contract is legally defensible. In a US court, all a clever lawyer has to say is "What do you mean, my client can't give software away? What's next - can't invite friends to lunch without charging them for the food because it's cooked on a MASM stove?" Case over, friends eat for free.

Garbage.

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