Software license

Last updated

Free and open (software must have source code provided)Non-free
Public domain Permissive license Copyleft (protective license) Noncommercial license Proprietary license Trade secret
DescriptionGrants all rightsGrants use rights, including right to relicense (allows proprietization, license compatibility)Grants use rights, forbids proprietization Grants rights for noncommercial use only. May be combined with copyleft.Traditional use of copyright; no rights need be grantedNo information made public
SoftwarePD, CC0 MIT, Apache, MPL GPL, AGPL JRL, AFPL Proprietary software, no public licensePrivate, internal software
Other creative worksPD, CC0 CC-BY CC-BY-SA CC-BY-NC Copyright, no public licenseUnpublished

A software license is a legal instrument (usually by way of contract law , with or without printed material) governing the use or redistribution of software. Under United States copyright law, all software is copyright protected, in both source code and object code forms, unless that software was developed by the United States Government, in which case it cannot be copyrighted. [1] Authors of copyrighted software can donate their software to the public domain, in which case it is also not covered by copyright and, as a result, cannot be licensed.

Contents

A typical software license grants the licensee, typically an end-user, permission to use one or more copies of software in ways where such a use would otherwise potentially constitute copyright infringement of the software owner's exclusive rights under copyright.

Most distributed software can be categorized according to its license type (see table).

Two common categories for software under copyright law, and therefore with licenses which grant the licensee specific rights, are proprietary software and free and open-source software (FOSS). The distinct conceptual difference between the two is the granting of rights to modify and re-use a software product obtained by a customer: FOSS software licenses both rights to the customer and therefore bundles the modifiable source code with the software ("open-source"), while proprietary software typically does not license these rights and therefore keeps the source code hidden ("closed source").

In addition to granting rights and imposing restrictions on the use of copyrighted software, software licenses typically contain provisions which allocate liability and responsibility between the parties entering into the license agreement. In enterprise and commercial software transactions, these terms often include limitations of liability, warranties and warranty disclaimers, and indemnity if the software infringes intellectual property rights of anyone.

Unlicensed software outside the scope of copyright protection is either public domain software (PD) or software which is non-distributed, non-licensed and handled as internal business trade secret. [2] Contrary to popular belief, distributed unlicensed software (not in the public domain) is fully copyright protected, and therefore legally unusable (as no usage rights at all are granted by a license) until it passes into public domain after the copyright term has expired. [3] Examples of this are unauthorized software leaks or software projects which are placed on public software repositories like GitHub without a specified license. [4] [5] As voluntarily handing software into the public domain (before reaching the copyright term) is problematic in some jurisdictions (for instance the Law of Germany), there are also licenses granting PD-like rights, for instance the CC0 or WTFPL. [6]

Software licenses and rights granted in context of the copyright according to Mark Webbink. [2] Expanded by freeware and sublicensing.
Rights granted Public domain Permissive FOSS
license (e.g. BSD license)
Copyleft FOSS
license (e.g. GPL)
Freeware/Shareware/
Freemium
Proprietary license Trade secret
Copyright retainedNoYesYesYesYesVery strict
Right to perform YesYesYesYesYesNo
Right to displayYesYesYesYesYesNo
Right to copyYesYesYesOftenNoLawsuits are filed by the owner against copyright infringement the most
Right to modify YesYesYesNoNoNo
Right to distributeYesYes, under same licenseYes, under same licenseOftenNoNo
Right to sublicenseYesYesNoNoNoNo
Example software SQLite, ImageJ Apache web server, ToyBox Linux kernel, GIMP, OBS Irfanview, Winamp, League of Legends Windows, the majority of commercial video games and their DRMs, Spotify, xSplit, TIDAL Server-side
Cloud computing programs and services,
forensic applications, and other line-of-business work.

Ownership vs. licensing

Many proprietary or open source software houses sell the SW copy with a license to use it. There isn't any transferring of ownership of the good to the user, which hasn't the warranty of a for life availability of the software, nor isn't entitled to sell, rent, give it to someone, copy or redistribute it on the Web. License terms and conditions may specify further legal clauses that users can't negotiate individually or by way of a consumer organization, and can uniquely accept or refuse, returning the product back to the vendor. [7] This right can be effectively applied where the jurisdiction provides a mandatory time for the good decline right after the purchase (as in the European Union law), or a mandatory public advertisement of the license terms, so as to be made readable by users before their purchasing.

In the United States, Section 117 of the Copyright Act gives the owner of a particular copy of software the explicit right to use the software with a computer, even if use of the software with a computer requires the making of incidental copies or adaptations (acts which could otherwise potentially constitute copyright infringement). Therefore, the owner of a copy of computer software is legally entitled to use that copy of software. Hence, if the end-user of software is the owner of the respective copy, then the end-user may legally use the software without a license from the software publisher.

As many proprietary "licenses" only enumerate the rights that the user already has under 17 U.S.C.   § 117,[ citation needed ] and yet proclaim to take rights away from the user, these contracts may lack consideration. Proprietary software licenses often proclaim to give software publishers more control over the way their software is used by keeping ownership of each copy of software with the software publisher. By doing so, Section 117 does not apply to the end-user and the software publisher may then compel the end-user to accept all of the terms of the license agreement, many of which may be more restrictive than copyright law alone. The form of the relationship determines if it is a lease or a purchase, for example UMG v. Augusto [8] or Vernor v. Autodesk, Inc. [9] [10]

The ownership of digital goods, like software applications and video games, is challenged by "licensed, not sold" EULAs of digital distributors like Steam. [11] In the European Union, the European Court of Justice held that a copyright holder cannot oppose the resale of a digitally sold software, in accordance with the rule of copyright exhaustion on first sale as ownership is transferred, and questions therefore the "licensed, not sold" EULA. [12] [13] [14] [15] [16] [17] The Swiss-based company UsedSoft innovated the resale of business software and fought for this right in court. [18] In Europe, EU Directive 2009/24/EC expressly permits trading used computer programs. [19]

Proprietary software licenses

The hallmark of proprietary software licenses is that the software publisher grants the use of one or more copies of software under the end-user license agreement (EULA), but ownership of those copies remains with the software publisher (hence use of the term "proprietary"). This feature of proprietary software licenses means that certain rights regarding the software are reserved by the software publisher. Therefore, it is typical of EULAs to include terms which define the uses of the software, such as the number of installations allowed or the terms of distribution.

The most significant effect of this form of licensing is that, if ownership of the software remains with the software publisher, then the end-user must accept the software license. In other words, without acceptance of the license, the end-user may not use the software at all. One example of such a proprietary software license is the license for Microsoft Windows. As is usually the case with proprietary software licenses, this license contains an extensive list of activities which are restricted, such as: reverse engineering, simultaneous use of the software by multiple users, and publication of benchmarks or performance tests.

There are numerous types of licensing models, varying from simple perpetual licenses and floating licenses to more advanced models such as the metered license. [20] The most common licensing models are per single user (named user, client, node) or per user in the appropriate volume discount level, while some manufacturers accumulate existing licenses. These open volume license programs are typically called open license program (OLP), transactional license program (TLP), volume license program (VLP) etc. and are contrary to the contractual license program (CLP), where the customer commits to purchase a certain number of licenses over a fixed period (mostly two years). Licensing per concurrent/floating user also occurs, where all users in a network have access to the program, but only a specific number at the same time. Another license model is licensing per dongle, which allows the owner of the dongle to use the program on any computer. Licensing per server, CPU or points, regardless the number of users, is common practice, as well as site or company licenses. Sometimes one can choose between perpetual (permanent) and annual license. For perpetual licenses, one year of maintenance is often required, but maintenance (subscription) renewals are discounted. For annual licenses, there is no renewal; a new license must be purchased after expiration. Licensing can be host/client (or guest), mailbox, IP address, domain etc., depending on how the program is used. Additional users are inter alia licensed per extension pack (e.g. up to 99 users), which includes the base pack (e.g. 5 users). Some programs are modular, so one will have to buy a base product before they can use other modules. [21]

Software licensing often also includes maintenance. This, usually with a term of one year, is either included or optional, but must often be bought with the software. The maintenance agreement (contract) typically contains a clause that allows the licensee to receive minor updates (V.1.1 => 1.2), and sometimes major updates (V.1.2 => 2.0). This option is usually called update insurance or upgrade assurance. For a major update, the customer has to buy an upgrade, if it is not included in the maintenance agreement. For a maintenance renewal, some manufacturers charge a reinstatement (reinstallment) fee retroactively per month, in the event that the current maintenance has expired.

Maintenance sometimes includes technical support. When it does, the level of technical support, which are commonly named gold, silver and bronze, can vary depending on the communication method (i.e. e-mail versus telephone support), availability (e.g. 5x8, 5 days a week, 8 hours a day) and reaction time (e.g. three hours). Support is also licensed per incident as an incident pack (e.g. five support incidents per year). [21]

Many manufacturers offer special conditions for schools and government agencies (EDU/GOV license). Migration from another product (crossgrade), even from a different manufacturer (competitive upgrade) is offered. [21]

Free and open-source software licenses

Diagram of software under various licenses according to the FSF and their The Free Software Definition: on the left side "free software", on the right side "proprietary software". On both sides, and therefore mostly orthogonal, "free download" (Freeware). Software Categories expanded.svg
Diagram of software under various licenses according to the FSF and their The Free Software Definition: on the left side "free software", on the right side "proprietary software". On both sides, and therefore mostly orthogonal, "free download" (Freeware).

There are several organizations in the FOSS domain who give out guidelines and definitions regarding software licenses. Free Software Foundation maintains non-exhaustive lists of software licenses following their The Free Software Definition and licenses which the FSF considers non-free for various reasons. [22] The FSF distinguishes additionally between free software licenses that are compatible or incompatible with the FSF license of choice, the copyleft GNU General Public License. The Open Source Initiative defines a list of certified open-source licenses following their The Open Source Definition. [23] Also the Debian project has a list of licenses which follow their Debian Free Software Guidelines. [24]

Free and open-source licenses are commonly classified into two categories: Those with the aim to have minimal requirements about how the software can be redistributed (permissive licenses), and the protective share-alike (copyleft Licenses).

An example of a copyleft free software license is the often used GNU General Public License (GPL), also the first copyleft license. This license is aimed at giving and protecting all users unlimited freedom to use, study, and privately modify the software, and if the user adheres to the terms and conditions of the GPL, freedom to redistribute the software or any modifications to it. For instance, any modifications made and redistributed by the end-user must include the source code for these, and the license of any derivative work must not put any additional restrictions beyond what the GPL allows. [25]

Examples of permissive free software licenses are the BSD license and the MIT license, which give unlimited permission to use, study, and privately modify the software, and includes only minimal requirements on redistribution. This gives a user the permission to take the code and use it as part of closed-source software or software released under a proprietary software license.

It was under debate some time if public domain software and public domain-like licenses can be considered as a kind of FOSS license. Around 2004 lawyer Lawrence Rosen argued in the essay "Why the public domain isn't a license" software could not truly be waived into public domain and can't therefore be interpreted as very permissive FOSS license, [26] a position which faced opposition by Daniel J. Bernstein and others. [27] In 2012 the dispute was finally resolved when Rosen accepted the CC0 as an open source license, while admitting that contrary to his previous claims, copyright can be waived away, backed by Ninth circuit decisions. [28]

See also

Related Research Articles

Free software Software licensed to preserve user freedoms

Free software is computer software distributed under terms that allow users to run the software for any purpose as well as to study, change, and distribute it and any adapted versions. Free software is a matter of liberty, not price: users and computer programmers are free to do what they want with their copies of a free software regardless of how much is paid to obtain the program. Computer programs are deemed "free" if they give both programmers and end-users ultimate control over the software and, subsequently, over their devices.

Free software movement Social and political movement

The free software movement is a social movement with the goal of obtaining and guaranteeing certain freedoms for software users, namely the freedom to run the software, to study and change the software, and to redistribute copies with or without changes. Software which meets these requirements is termed free software. The word 'free' is ambiguous in English, although in this context, it means 'free as in freedom', not 'free as in zero price'. A common example is, "to think of free speech, not free beer."

An open-source license is a type of license for computer software and other products that allows the source code, blueprint or design to be used, modified and/or shared under defined terms and conditions. This allows end users and commercial companies to review and modify the source code, blueprint or design for their own customization, curiosity or troubleshooting needs. Open-source licensed software is mostly available free of charge, though this does not necessarily have to be the case.

Viral license is an alternative name for copyleft licenses, especially the GPL, that allows derivative works only when permissions are preserved in modified versions of the work. Copyleft licenses include several common open-source and free content licenses, such as the GNU General Public License (GPL) and the Creative Commons Attribution-Sharealike license (CC-BY-SA).

Software copyright is the application of copyright law to machine-readable software. While many of the legal principles and policy debates concerning software copyright have close parallels in other domains of copyright law, there are a number of distinctive issues that arise with software. This article primarily focuses on topics particular to software.

Beerware is a somewhat tongue-in-cheek term for software released under a very relaxed license. It provides the end user with the right to use a particular program.

Free and open-source software Software whose source code is available and which is permissively licensed

Free and open-source software (FOSS) is software that can be classified as both free software and open-source software. That is, anyone is freely licensed to use, copy, study, and change the software in any way, and the source code is openly shared so that people are encouraged to voluntarily improve the design of the software. This is in contrast to proprietary software, where the software is under restrictive copyright licensing and the source code is usually hidden from the users.

Free/open-source software – the source availability model used by free and open-source software (FOSS) – and closed source are two approaches to the distribution of software.

Multi-licensing is the practice of distributing software under two or more different sets of terms and conditions. This may mean multiple different software licenses or sets of licenses. Prefixes may be used to indicate the number of licenses used, e.g. dual-licensed for software licensed under two different licenses.

A permissive software license, sometimes also called BSD-like or BSD-style license, is a free-software license with only minimal restrictions on how the software can be used, modified, and redistributed, usually including a warranty disclaimer. Examples include the GNU All-permissive License, MIT License, BSD licenses, Apple Public Source License and Apache license. As of 2016, the most popular free-software license is the permissive MIT license.

This is a comparison of free and open-source software licences. The comparison only covers software licences with a linked article for details, approved by at least one expert group at the FSF, the OSI, the Debian project or the Fedora project. For a list of licences not specifically intended for software, see List of free content licences.

Public-domain software computer code instructions not under copyright

Public-domain software is software that has been placed in the public domain: in other words, there is absolutely no ownership such as copyright, trademark, or patent. Software in the public domain can be modified, distributed, or sold even without any attribution by anyone; this is unlike the common case of software under exclusive copyright, where software licenses grant limited usage rights.

License compatibility is a legal framework that allows for pieces of software with different software licenses to be distributed together. The need for such a framework arises because the different licenses can contain contradictory requirements, rendering it impossible to legally combine source code from separately-licensed software in order to create and publish a new program. Proprietary licenses are generally program-specific and incompatible; authors must negotiate to combine code. Copyleft licenses are deliberately incompatible with proprietary licenses, in order to prevent copyleft software from being re-licensed under a proprietary license, turning it into proprietary software. Many copyleft licenses explicitly allow relicensing under some other copyleft licenses. Permissive licenses are compatible with everything, including proprietary licenses; there is thus no guarantee that all derived works will remain under a permissive license.

Free-software license license allowing software modification and redistribution

A free-software license is a notice that grants the recipient of a piece of software extensive rights to modify and redistribute that software. These actions are usually prohibited by copyright law, but the rights-holder of a piece of software can remove these restrictions by accompanying the software with a software license which grants the recipient these rights. Software using such a license is free software as conferred by the copyright holder. Free-software licenses are applied to software in source code and also binary object-code form, as the copyright law recognizes both forms.

BSD licenses are a family of permissive free software licenses, imposing minimal restrictions on the use and distribution of covered software. This is in contrast to copyleft licenses, which have share-alike requirements. The original BSD license was used for its namesake, the Berkeley Software Distribution (BSD), a Unix-like operating system. The original version has since been revised, and its descendants are referred to as modified BSD licenses.

Copyleft Practice of mandating free use in all derivatives of a work

Copyleft is the practice of granting the right to freely distribute and modify intellectual property with the requirement that the same rights be preserved in derivative works created from that property. Copyleft in the form of licenses can be used to maintain copyright conditions for works ranging from computer software, to documents, art, scientific discoveries and even certain patents.

Proprietary software, also known as non-free software, or closed-source software, is computer software for which the software's publisher or another person retains intellectual property rights—usually copyright of the source code, but sometimes patent rights.

GNU General Public License Series of free software licenses

The GNU General Public License is a series of widely-used free software licenses that guarantee end users the freedom to run, study, share, and modify the software. The licenses were originally written by Richard Stallman, former head of the Free Software Foundation (FSF), for the GNU Project, and grant the recipients of a computer program the rights of the Free Software Definition. The GPL series are all copyleft licenses, which means that any derivative work must be distributed under the same or equivalent license terms. This is in distinction to permissive software licenses, of which the BSD licenses and the MIT License are widely used, less restrictive examples. GPL was the first copyleft license for general use.

Software categories are groups of software. They allow software to be understood in terms of those categories. Instead of the particularities of each package. Different classification schemes consider different aspects of software.

Richard Stallman founded the GNU Project in 1983 so that people could use computers using only free software, allowing further modification of programs initially written by others. He established a non-profit organization, the Free Software Foundation, in 1985, to more formally organize the project. Stallman also invented copyleft, a legal mechanism to maintain the free status of a work on modified versions and implemented this through the GNU General Public License (GPL). This license has since been revised twice, known as the GPL Version 2 and Version 3. The courts, mainly in the United States, have since grappled with the copyright, contractual and patent issues resulting from questions of legal validity of the GPL and other such off-shooting open source licenses.

References

  1. Hancock, Terry (2008-08-29). "What if copyright didn't apply to binary executables?". Free Software Magazine . Retrieved 2016-01-25.
  2. 1 2 Larry Troan (2005). "Open Source from a Proprietary Perspective" (PDF). RedHat Summit 2006 Nashville . redhat.com. p. 10. Archived from the original (pdf) on 2014-01-22. Retrieved 2015-12-29.
  3. Pick a License, Any License on codinghorror by Jeff Atwood
  4. github-finally-takes-open-source-licenses-seriously on infoworld.com by Simon Phipps (July 13, 2013)
  5. Post open source software, licensing and GitHub on opensource.com by Richard Fontana (13 Aug 2013)
  6. Validity of the Creative Commons Zero 1.0 Universal Public Domain Dedication and its usability for bibliographic metadata from the perspective of German Copyright Law by Dr. Till Kreutzer, attorney-at-law in Berlin, Germany
  7. "The difference between ownership transfer (purchased) and licensing software". Allbusiness.com . Archived from the original on 22 May 2015.
  8. "UMG v. Augusto". January 28, 2009.
  9. "Court smacks Autodesk, affirms right to sell used software". Ars Technica. May 23, 2008.
  10. "Vernor v. Autodesk". 2007-11-14.
  11. Walker, John (2012-02-01). "Thought: Do We Own Our Steam Games?". Rock, Paper, Shotgun . Retrieved 2014-12-27. I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. “In fact,” he says, “it’s never been completely resolved for software generally[...]"
  12. Purewal, Jas. "The legality of second hand software sales in the EU". gamerlaw.co.uk. (mirror on gamasutra.com)
  13. hg/mz (AFP, dpa) (2012-07-03). "Oracle loses court fight over software resale rules". dw.de . Retrieved 2014-12-30. A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.
  14. Voakes, Greg (2012-07-03). "European Courts Rule In Favor Of Consumers Reselling Downloaded Games". forbes.com . Retrieved 2014-12-30. Could this be the victory we need for a “gamer’s bill of rights” ? DRM is an oft-cited acronym, and resonates negatively in the gaming community. The Court of Justice of the European Union ruled in favor of reselling downloaded games. Simply put, legally purchased and downloaded games will be treated like physical copies of the game, and consumers can then sell their ‘used’ game.
  15. "JUDGMENT OF THE COURT (Grand Chamber)". InfoCuria – Case-law of the Court of Justice. 2012-07-03. Retrieved 2014-12-30. (Legal protection of computer programs — Marketing of used licenses for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer)
  16. Timothy B. Lee (2012-07-03). "Top EU court upholds right to resell downloaded software". Ars Technica.
  17. "EU Court OKs Resale of Software Licenses". AP.
  18. ecj-usedsoft-ruling
  19. Directive 2009/24/EC of the European Parliament and the Council. Official Journal of the European Union Accessed on 14 March 2014.
  20. Software Licensing Models - Ultimate Guide (2020), 10duke.com.
  21. 1 2 3 Scholten, Thomas. "Software Licensing" . Retrieved 21 May 2012.
  22. License listFree Software Foundation
  23. Open Source Licenses by Category on opensource.org
  24. DFSGLicenses on debian.org
  25. "The GNU General Public License v3.0 – GNU Project – Free Software Foundation (FSF)". fsf.org. Retrieved 24 March 2010.
  26. Lawrence Rosen (2004-05-25). "Why the public domain isn't a license". rosenlaw.com. Retrieved 2016-02-22.
  27. Placing documents into the public domain by Daniel J. Bernstein on cr.yp.to "Most rights can be voluntarily abandoned ("waived") by the owner of the rights. Legislators can go to extra effort to create rights that can't be abandoned, but usually they don't do this. In particular, you can voluntarily abandon your United States copyrights: "It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960)."" (2004)
  28. Lawrence Rosen (2012-03-08). "(License-review) (License-discuss) CC0 incompliant with OSD on patents, (was: MXM compared to CC0)". opensource.org. Archived from the original on 2016-03-12. The case you referenced in your email, Hampton v. Paramount Pictures, 279 F.2d 100 (9th Cir. Cal. 1960), stands for the proposition that, at least in the Ninth Circuit, a person can indeed abandon his copyrights (counter to what I wrote in my article) -- but it takes the equivalent of a manifest license to do so. :-)[...] For the record, I have already voted +1 to approve the CC0 public domain dedication and fallback license as OSD compliant. I admit that I have argued for years against the "public domain" as an open source license, but in retrospect, considering the minimal risk to developers and users relying on such software and the evident popularity of that "license", I changed my mind. One can't stand in the way of a fire hose of free public domain software, even if it doesn't come with a better FOSS license that I trust more.