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 source code as also object code form. The only exception is software in the public domain . 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 law.
* 1.1 Ownership vs. licensing
SOFTWARE LICENSES AND COPYRIGHT LAW
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 others.
Unlicensed software outside the copyright protection is either public
domain software (PD) or software which is non-distributed,
non-licensed and handled as internal business trade secret . 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 . Examples for this are
unauthorized software leaks or software projects which are placed on
public software repositories like
GitHub without specified license.
As voluntarily handing software into the public domain (before
reaching the copyright term) is problematic in some international law
domains (for instance the
Law of Germany ), there are also licenses
granting PD-like rights, for instance the
Right to perform Yes Yes Yes Yes Yes No
Right to display Yes Yes Yes Yes Yes No
Right to copy Yes Yes Yes Often No No
Right to modify Yes Yes Yes No No No
Right to distribute Yes Yes, under same license Yes, under same license Often No No
Right to sublicense Yes Yes No No No No
OWNERSHIP VS. LICENSING
In the United States, Section 117 of the
As many proprietary "licenses" only enumerate the rights that the user already has under 17 U.S.C. § 117, 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 or Vernor v. Autodesk, Inc.
The ownership of digital goods , like software applications and video
games , is challenged by "licensed, not sold" EULAs of digital
distributors like Steam . In the
PROPRIETARY SOFTWARE LICENSES
Main article: Proprietary software Further information: End-user license agreement
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
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.
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.
FREE AND OPEN-SOURCE SOFTWARE LICENSES
Diagram of software under various licenses according to the FSF
and their The Free
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
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
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, a position which faced opposition by
Daniel J. Bernstein and
others. In 2012 the dispute was finally resolved when Rosen accepted
Comparison of free and open-source software licenses
Digital rights management
* ^ A B C Larry Troan (2005). "Open Source from a Proprietary