The future of the Internet and the freedom to use open software is threatened by licensing and patent ideologies that benefit only a select few. Therefore, it is of critical importance that the average human being understand the ideas behind software licensing and patents.
In this article we’ll try to understand the concept of software licensing, open-source software and why we need open-source licenses as opposed to putting everything in the public domain.
Important: This article is only a brief and overly simplified overview of the concepts, as I understand it. My definitions and explanations may be inaccurate, may represent my personal views and prejudices, and are not meant to be legal and/or practical advice about licensing, patents, technology or intellectual property. Please consult a lawyer before taking any action. Just treat this article as one more opinion on the state of affairs. And don’t forget these terms mean different things in different countries.
What is a License?
To use software you need a computer. Let’s say you buy a computer and software. How are your ‘rights’ any different? Here are some distinctions:
|If ‘it’ is a –||A computer||Software|
|Can you pass it on to your kid?||Yes||Yes|
|Can you give it away to a total stranger?||Yes||Unsure|
|Can you sell it to someone?||Yes||Yes|
|Can you destroy it?||Yes||Yes|
|Can you modify it and use it as something else?||Yes||Yes|
|Can you modify it and sell only that copy for a profit?||Yes||Who knows?|
|Can you make copies of it and give it away?||No||No|
|Can you make copies of it and sell it?||No||No|
|Can you represent it as your property?||Yes||Unsure|
|Can you represent its design as your own?||No||No|
In Understanding Intellectual Property, Copyright and Patents, we saw how physical objects are not easy to copy. It’s not easy for a lay person to create (or recreate, if given a copy) a pencil, a wine glass, mineral water, a lens or a car.
However, digital objects are relatively easy to copy. Even if the lay person cannot create a digital file from scratch, it is easy to make a copy of it. Copying software is harder. But it only takes one hacked copy of a software to make it as easy to copy and distribute as a digital file.
The differences in ‘rights’ between a physical object and software boils down to sharing and copying. Every country has different laws for each of the scenarios above. Is there one solution that will satisfy everybody? No. What makes things really hard is that software is a broad term that can mean anything:
- A blog
- An application for editing
- A plug-in
- A video, especially an interactive video
- An ebook, and so on.
You might not agree that some of the things listed above are ‘software’. It doesn’t matter what you or I think, it’s what the software developer thinks is right for his or her business.
It is quite clear, at least in the eyes of the law, that there is a profound distinction between a physical object and software. This distinction allows developers the freedom to reinterpret their products in creative ways. This gives them options on modes of conducting business. Are there modes of business other than buying or selling? Sure, there’s renting.
Instead of selling you a car, they rent it out to you. Let’s see how that changes things:
|Can you pass it on to your kid?||No|
|Can you give it away to a total stranger?||No|
|Can you sell it to someone?||No|
|Can you destroy it?||No|
|Can you modify it and use it as something else?||No|
|Can you modify it and sell only that copy for a profit?||No|
|Can you make copies of it and give it away?||No|
|Can you make copies of it and sell it?||No|
|Can you represent it as your property?||No|
|Can you represent its design as your own?||No|
Wow. See how it works? Now, there are two ‘stumbling blocks’ with the rental model:
- A rental model guarantees you can use a product for a specific time. If you rent a car for two days, you get to keep the car for two, full, days.
- Secondly, by tradition, all rentals don’t need a contract between the parties involved. If you rent an apartment, there’ll be a contract, but if you’re renting a library book or a DVD, there’s not always a contract involved.
What software developers want is the right to:
- Get into an agreement so they can come after you if you make copies of the software and distribute it.
- Get into a temporary rental period where the duration of the period is superseded by the right of both (or either) party to terminate the agreement at any time.
It goes without saying that a software developer will create an agreement skewed in his or her favor. After all, this is in their best interests. The business climate is uncertain, the pace of technology advance is unprecedented, and there are too many variables that will impact service and support in the future. How can they guarantee anything? Even if a company decides they want to be nice to everyone, they can’t.
In the provisions of law in most countries, there is a tool that allows the dominant party to revoke a rental right at any time. The special nature of this tool is that the affected party’s loss can go to hell. Here are some examples:
- Driver’s license – can be revoked by the government at any time.
- Professional license to practice something – can be revoked by a ‘board’ or an organization.
- Vendor’s license – can be revoked by the government.
- Marriage license – arcane, but it does give society the power to take away the right of two individuals to live together under marriage.
The key power of a license is the ‘right’ of the licensor to revoke the license at the expense of the licensee. It’s usually the licensee who is affected. If you lose your license to drive, practice law, sell bandwidth or get married, you are always the loser (in your own eyes, of course. Maybe you are maniacal driver, who lied under oath, took kickbacks to sell bandwidth and married ten women in different cities). Both sides have valid arguments, but the license arrangement always puts the weaker party at a disadvantage if the licensor has been unfair.
The concept of software licensing
Most software is licensed. This means:
- You sign a contract with the vendor.
- You agree that the product is licensed to you, and can be revoked at any time.
- The software is never your property (not always true).
So, when do you come into agreement? Most signup forms force you to explicitly agree to a contract before proceeding. At that instant you have the option to agree or disagree. This seems fair, except:
- Sometimes the agreement appears after you have divulged a lot of personal information.
- Sometimes the agreement is only shown after you have purchased the item or software.
- Sometimes you download gigabytes of the software and only then get the agreement for review.
Luckily, many vendors make their agreements publicly available on their websites, so one can read through them before committing information, money or bandwidth. That seems fair enough, except most human beings hate reading through pages of fine print, and are not lawyers anyway even if they did.
In short, a software vendor protects itself legally by declaring the software you are getting is:
- Not sold to you, but licensed.
- Is not your property.
- Revokable at any moment.
Not all vendors agree to what extent they must protect their vested interests. Some are kind, some are not. Some have not been burnt, some have. We are all humans, and our laws are not perfect.
Is there a way out of this mess? Sure. Because the rate of growth has been phenomenal, lawmakers have wisely (or unwisely, time will tell) decided to keep ‘all options open’, and allow for each transaction to have its own licensing model. This means, just like an actual contract, the terms can change.
This allows those who have a kinder, simpler, more liberal and charitable bent to invent their own types of licenses. The most important reason to have standard licenses is so that lay people don’t have to worry about the fine print. “Oh, let’s just agree on a licensing XYZ arrangement, shall we?” No need for expensive lawyers, nothing.
At least, that’s the theory.
What are the different kinds of licensing?
Licensing can be broadly divided into two categories, in two different ways:
*Technically ‘open-source’ means the source code has been released, but the term has become ubiquitous so I also mean it to include open software or digital works.
Proprietary software can be free or paid for. E.g., DaVinci Resolve Lite is free, but is proprietary. This means, you can’t alter the software, sell it, repackage it, or make copies or distribute it.
On the other hand, open-source is usually free, but can also include a business model where you pay for more features, support, updates, etc. E.g., Editshare Lightworks is going to be open-source, and has a free version. They also have a paid version which gives you greater codecs, support, etc. The difference between the Lightworks model and Resolve Lite is that the former supposedly will allow you to make derivative works out of it. But since they haven’t announced it yet we don’t know how it’ll turn out.
Open-source can mean many things. The different licenses designed for open-source usually stress on different aspects of share-ability and the right to create derivative work. I’ll go into this in detail in the next section. For now, let’s look at the various kinds of open-source licensing available. You can broadly divide open-source licenses into:
- Permissive (Do whatever you want, but thank us)
- Public Domain (Do whatever you want, period)
- Copyleft (Do whatever you want, but you must respect your ancestors)
A permissive license usually gives you the right to modify, exploit and do whatever you want, except for certain restrictions. Here are examples of permissive licenses:
The permissive license usually allows you to repackage the software and create proprietary versions of your own. In fact, the only major difference between an MIT or BSD license and public domain is that you must attribute the copyright of the creator (but who follows it? Nobody has challenged it in court yet!). Therefore, if you are in a country where the word ‘public domain’ doesn’t exist, your best bet to create free software is BSD or MIT. More on this in the next section.
A copyleft license might also give you the right to modify, exploit (sometimes), etc., except any derivative work might have to be published under the same license. One popular copyleft family of licenses used for software are the GNU General Public Licenses (GPL) family. The GPL license explicitly tries to distance its arrangement from a contract.
Another popular copyleft license family typically used with artistic works is Creative Commons (CC). It allows you to choose between a combination of rights such as attribution, non-commercialization, sharing and the creation of derivatives. E.g., wolfcrow.com ebooks are under the CC BY-NC-SA license, which means anyone who uses it must:
- Attribute any derived works to wolfcrow.com
- Cannot sell it but must give it away for free.
- Publish all future derivative works under the exact same license.
There are many more kinds of software licenses. There are also many bodies and organizations who presume they are the guardians of free or open software. For this reason you must carefully study the licenses to find the right one for your project. Here’s a Comparison of free and open-source software licenses from Wikipedia.
Unfortunately, the idea that selecting a licensing model and then forgetting about it is a sham. It’s not that easy.
Why isn’t open source software in the public domain?
You might be wondering: free is free, right? If somebody just wants to give away software or a digital file why not just put it in the public domain?
As great as people’s intentions are, bad things can happen when they don’t think through the consequences. Here are a few problems to works in the public domain:
- Others can create proprietary works from it, repackage it, patent it and then sue the hell out of everyone else who’s using it (Like going back in time and dying – does that kill you in the present?).
- There is no liability or warranty. What if something bad happens? What if you deploy a piece of software at a hospital and thousands die because of it?
- There is no attribution. Shouldn’t we save the names of our heroes for posterity?
- On the other hand, it is wrong for the user of a work to misguide others into believing the creator endorses his or her usage of the product or any derivative work created from it.
- The concept of freedom, public domain, etc., does not exist in all countries. Even if they did, not everyone agrees to its meaning and importance. What is public domain in one country might be copyrighted in another.
Licenses ensure humans remain responsible for their creations and actions (just like driver’s licenses, medical and law licenses, etc.). Some licenses try to be as ‘free’ as it is legally and physically possible for humans to be. However, until the laws of the land incorporate these systems into the constitution, the landscape will remain far from clear.
Thankfully we have individuals and bodies who continue working and fighting for our rights, even if we are oblivious or unthankful to their efforts.