A software license is a legal instrument (usually by way of

contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to ...

, with or without printed material) governing the use or redistribution of software. Under United States copyright law, all

software Software is a set of computer programs and associated software documentation, documentation and data (computing), data. This is in contrast to Computer hardware, hardware, from which the system is built and which actually performs the work. ...

copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...

protected, in both

source code In computing, source code, or simply code, is any collection of code, with or without comment (computer programming), comments, written using a human-readable programming language, usually as plain text. The source code of a Computer program, p ...

and

object code In computing, object code or object module is the product of a compiler. In a general sense object code is a sequence of statements or instructions in a computer language, usually a machine code language (i.e., binary) or an intermediate lang ...

forms, unless that software was developed by the United States Government, in which case it cannot be copyrighted. Authors of copyrighted software can donate their software to the

public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired, ...

, in which case it is also not covered by copyright and, as a result, cannot be licensed. A typical software license grants the

licensee A licensee can mean the holder of a license or, in U.S. tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the li ...

, typically an

end-user In product development, an end user (sometimes end-user) is a person who ultimately uses or is intended to ultimately use a product. The end user stands in contrast to users who support or maintain the product, such as sysops, system administrato ...

, 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 In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right to ...

under copyright.

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

specific rights, are

proprietary software Proprietary software is computer software, software that is deemed within the free and open-source software to be non-free because its creator, publisher, or other rightsholder or rightsholder partner exercises a legal monopoly afforded by modern ...

and

free and open-source software Free and open-source software (FOSS) is a term used to refer to groups of software consisting of both free software and open-source software where anyone is freely licensed to use, copy, study, and change the software in any way, and the source ...

(FOSS). The distinct conceptual difference between the two is the granting of rights to modify and re-use a

software product Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work. At the lowest programming level, executable code consists o ...

obtained by a customer: FOSS software licenses both rights to the customer and therefore bundles the modifiable

with the software ("

open-source Open source is source code that is made freely available for possible modification and redistribution. Products include permission to use the source code, design documents, or content of the product. The open-source model is a decentralized sof ...

"), while proprietary software typically does not license these rights and therefore keeps the source code hidden ("

closed source Proprietary software is software that is deemed within the free and open-source software to be non-free because its creator, publisher, or other rightsholder or rightsholder partner exercises a legal monopoly afforded by modern copyright and in ...

"). 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 Public-domain software is software that has been placed in the public domain, in other words, software for which there is absolutely no ownership such as copyright, trademark, or patent. Software in the public domain can be modified, distributed, ...

(PD) or software which is non-distributed, non-licensed and handled as internal business

trade secret Trade secrets are a type of intellectual property that includes formulas, practices, processes, designs, instruments, patterns, or compilations of information that have inherent economic value because they are not generally known or readily a ...

. 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 The copyright term is the length of time copyright subsists in a work before it passes into the public domain. In most of the world, this length of time is the life of the author plus either 50 or 70 years. Length of copyright Copyright subsists f ...

has expired. Examples of this are unauthorized software leaks or software projects which are placed on public software repositories like

GitHub GitHub, Inc. () is an Internet hosting service for software development and version control using Git. It provides the distributed version control of Git plus access control, bug tracking, software feature requests, task management, co ...

without a specified license. As voluntarily handing software into the public domain (before reaching the copyright term) is problematic in some jurisdictions (for instance the

law of Germany The law of Germany (german: das Recht Deutschlands), that being the modern German legal system (german: Deutsches Rechtssystem), is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of G ...

), there are also licenses granting PD-like rights, for instance the

CC0 A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted "work".A "work" is any creative material made by a person. A painting, a graphic, a book, a song/lyric ...

WTFPL WTFPL is a permissive free software license. As a public domain like license, the WTFPL is essentially the same as dedication to the public domain. It allows redistribution and modification of the work under any terms. The title is an abbreviati ...

Ownership vs. licensing

Many proprietary or open source software houses sell the software copy with a license to use it. There is no transferring of

ownership Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as title, which may be separated and held by different ...

of the good to the user, who does not have the warranty of a for-life availability of the software, nor are they 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 cannot negotiate individually or by way of a

consumer organization Consumer organizations are advocacy groups that seek to protect people from corporate abuse like unsafe products, predatory lending, false advertising, astroturfing and pollution. Consumer Organizations may operate via protests, litigation, c ...

, and can uniquely accept or refuse, returning the product back to the vendor. 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 European Union law is a system of rules operating within the member states of the European Union (EU). Since the founding of the European Coal and Steel Community following World War II, the EU has developed the aim to "promote peace, its valu ...

), 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 Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, ...

). 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 , and yet proclaim to take rights away from the user, these contracts may lack

consideration Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. The court in '' Currie v Misa'' declar ...

. 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 ''Universal Music Group v. Augusto'' was a federal court case filed by Universal Music Group against Troy Augusto, a man who sold promotional CDs on eBay. UMG claimed that the CDs were their property, and Augusto's sales constituted copyright inf ...

'' or '' Vernor v. Autodesk, Inc.'' The ownership of

digital goods Digital goods or e-goods are intangible goods that exist in digital form. Examples are Wikipedia articles; digital media, such as e-books, downloadable music, internet radio, internet television and streaming media; fonts, logos, photos and graph ...

, like software applications and

video game Video games, also known as computer games, are electronic games that involves interaction with a user interface or input device such as a joystick, game controller, controller, computer keyboard, keyboard, or motion sensing device to gener ...

s, is challenged by "licensed, not sold"

EULA An end-user license agreement or EULA () is a legal contract between a software supplier and a customer or end-user, generally made available to the customer via a retailer acting as an intermediary. A EULA specifies in detail the rights and restr ...

s of digital distributors like

Steam Steam is a substance containing water in the gas phase, and sometimes also an aerosol of liquid water droplets, or air. This may occur due to evaporation or due to boiling, where heat is applied until water reaches the enthalpy of vaporizat ...

. In the

European Union The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been ...

, the

European Court of Justice The European Court of Justice (ECJ, french: Cour de Justice européenne), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Unio ...

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. The Swiss-based company UsedSoft innovated the resale of business software and fought for this right in court. In Europe, EU Directive 2009/24/EC expressly permits trading used computer programs.''Directive 2009/24/EC of the European Parliament and the Council.''
Official Journal of the European Union Accessed on 14 March 2014.

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 An end-user license agreement or EULA () is a legal contract between a software Software is a set of computer programs and associated software documentation, documentation and data (computing), data. This is in contrast to Computer hardware ...

(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 Reverse engineering (also known as backwards engineering or back engineering) is a process or method through which one attempts to understand through deductive reasoning how a previously made device, process, system, or piece of software accompli ...

, 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. 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. 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 Technical support (abbreviated as tech support) is a call centre type customer service provided by companies to advise and assist registered users with issues concerning their technical products. Traditionally done on the phone, 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). 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

There are several organizations in the FOSS domain who give out guidelines and definitions regarding software licenses.

Free Software Foundation The Free Software Foundation (FSF) is a 501(c)(3) non-profit organization founded by Richard Stallman on October 4, 1985, to support the free software movement, with the organization's preference for software being distributed under copyleft ("s ...

maintains non-exhaustive lists of software licenses following their

The Free Software Definition The Free Software Definition written by Richard Stallman and published by the Free Software Foundation (FSF), defines free software as being software that ensures that the end users have freedom in using, studying, sharing and modifying that softw ...

and licenses which the FSF considers non-free for various reasons. The FSF distinguishes additionally between free software licenses that are

compatible Compatibility may refer to: Computing * Backward compatibility, in which newer devices can understand data generated by older devices * Compatibility card, an expansion card for hardware emulation of another device * Compatibility layer, compon ...

or incompatible with the FSF license of choice, the

copyleft Copyleft is the legal technique of granting certain freedoms over copies of copyrighted works with the requirement that the same rights be preserved in derivative works. In this sense, ''freedoms'' refers to the use of the work for any purpose, ...

GNU General Public License The GNU General Public License (GNU GPL or simply GPL) is a series of widely used free software licenses that guarantee end user In product development, an end user (sometimes end-user) is a person who ultimately uses or is intended to ulti ...

. The

Open Source Initiative The Open Source Initiative (OSI) is the steward of the Open Source Definition, the set of rules that define open source software. It is a California public-benefit nonprofit corporation, with 501(c)(3) tax-exempt status. The organization w ...

defines a list of certified open-source licenses following their

The Open Source Definition ''The Open Source Definition'' is a document published by the Open Source Initiative, to determine whether a software license can be labeled with the open-source certification mark. The definition was taken from the exact text of the Debian Free ...

. Also the

Debian Debian (), also known as Debian GNU/Linux, is a Linux distribution composed of free and open-source software, developed by the community-supported Debian Project, which was established by Ian Murdock on August 16, 1993. The first version of De ...

project has a list of licenses which follow their

Debian Free Software Guidelines The Debian Free Software Guidelines (DFSG) is a set of guidelines that the Debian Project uses to determine whether a software license is a free software license, which in turn is used to determine whether a piece of software can be included in Deb ...

. 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 A permissive software license, sometimes also called BSD-like or BSD-style license, is a free-software license which instead of copyleft protections, carries only minimal restrictions on how the software can be used, modified, and redistributed, ...

), and the protective

share-alike Share-alike (🄎) is a copyright licensing term, originally used by the Creative Commons project, to describe works or licenses that require copies or adaptations of the work to be released under the same or similar license as the original. Copy ...

( copyleft Licenses). An example of a copyleft free software license is the often used

(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. Examples of permissive free software licenses are the

BSD license 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 li ...

and the

MIT license The MIT License is a permissive free software license originating at the Massachusetts Institute of Technology (MIT) in the late 1980s. As a permissive license, it puts only very limited restriction on reuse and has, therefore, high license co ...

, 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

license. It was under debate some time if

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 A waiver is the voluntary relinquishment or surrender of some known right or privilege. Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United S ...

into public domain and cannot 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 the

as an

open source license 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 compa ...

, while admitting that contrary to his previous claims, copyright can be waived away, backed by

Ninth circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * Distric ...

decisions.

References

External links

Software licensing for a small ISV and the issue of open source
by

Dan Bricklin Daniel Singer Bricklin (born July 16, 1951) is an American businessman and engineer who is the co-creator, with Bob Frankston, of the VisiCalc spreadsheet program. He also founded Software Garden, Inc., of which he is currently president, and ...

* by Jon Gillespie-Brown at knol.google.de * knol.google.com
"Relationships between different types of licenses Free and Non-Free"

"Various Licenses and Comments about Them"