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A software license (or software licence in commonwealth usage) is a legal instrument governing the usage or redistribution of copyright protected software. Legal instrument is a legal Term of art that is used for any written legal document such as a Certificate, a Deed, a will A typical software license grants an end-user permission to use one or more copies of software in ways where such a use would otherwise constitute infringement of the software publisher's exclusive rights under copyright law. 'Copyright infringement' (or copyright violation) is the unauthorized use of material that is covered by Copyright law in a manner that violates Copyright is a legal concept enacted by Governments, giving the creator of an original work of authorship Exclusive rights to control its distribution usually for In effect, the software license acts as a promise from the software publisher to not sue the end-user for engaging in activities that would normally be considered exclusive rights belonging to the software publisher.

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Proprietary vs. open source

Software licenses can generally be fit into one of two distinct categories: proprietary licenses and open source licenses. Proprietary software is Computer software on which the producer has set restrictions on use private modification copying, or republishing. Open source software (OSS began as a marketing campaign for Free software. The features that distinguish the two forms of licensing are significant in terms of the effect they have on the end-user's rights.

Proprietary software licenses

The hallmark of proprietary software licenses is that the software publisher grants a license to use one or more copies of software, but that ownership of those copies remains with the software publisher (hence use of the term "proprietary"). The word proprietary indicates that a party or proprietor exercises private Ownership, control or use over an item of Property. One consequence of this feature of proprietary software licenses is that virtually all rights regarding the software are reserved by the software publisher. Only a very limited set of well-defined rights are conceded to the end-user. Therefore, it is typical of proprietary software license agreements to include many terms which specifically prohibit certain uses of the software, often including uses which would otherwise be allowed under copyright law.

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. Microsoft Windows is a series of Software Operating systems and Graphical user interfaces produced by Microsoft. 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. Reverse engineering (RE is the process of discovering the technological principles of a device object or system through analysis of its structure function and operation

Open source licenses

With open source licenses, in contrast to proprietary software licenses, ownership of a particular copy of the software does not remain with the software publisher. Instead, ownership of the copy is transferred to the end-user. As a result, the end-user is, by default, afforded all rights granted by copyright law to the copy owner. Note that "copy owner" is not the same as "copyright owner". While ownership in a particular copy is transferred, ownership of the copyright remains with the software publisher. Additionally, open source software licenses typically grant to the end-user extra rights, which would otherwise be reserved by the software publisher.

A primary consequence of the open source form of licensing is that acceptance of open source licenses is essentially optional -- the end-user may use the software without accepting the license. However, if the end-user wishes to exercise any of the additional rights granted by an open source license (such as the right to redistribute the software), then the end-user must accept, and be bound by, the software license.

An example of an open source license is the GNU General Public License (GPL). Open source is a development methodology which offers practical accessibility to a product's source (goods and knowledge GNU ( pronounced) is a computer Operating system composed entirely of Free software. This license is aimed at giving the end-user significant permission, such as permission to redistribute, reverse engineer, or otherwise modify the software. These permissions are not entirely free of obligations for the end-user, however. The end-user must comply with certain terms if the end-user wishes to exercise these extra permissions granted by the GPL. For instance, any modifications made and redistributed by the end-user must include the source code for those modifications.

Other characteristics

In addition to granting rights and imposing restrictions on the use of 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 (such as limitations of liability, warranties and warranty disclaimers, and indemnity if the software infringes intellectual property rights of others) are often negotiated by attorneys specialized in software licensing. The legal field has seen the growth of this specialized practice area due to unique legal issues with software licenses, and the desire of software companies to protect assets which, if licensed improperly, could diminish their value.

Software licenses and copyright law

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). United States copyright law governs the legally enforceable rights of creative and artistic works in the United States. 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.

Accordingly, proprietary software licenses attempt 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.

Points of contention

When considered in the context of mass-produced software sold at retail, there are significant problems with the proprietary form of software licenses. In the United States, the Uniform Commercial Code (UCC) regulates most commercial transactions including the sale of goods. The Uniform Commercial Code ( UCC or the Code is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of Retail sales of software have been repeatedly deemed by courts in the United States to be a normal sale of goods within the meaning of the UCC. Accordingly, as with the sale of all types of goods, ownership of a copy of software transfers to the buyer in a retail transaction. Consequently, the end-user of the software is the owner of the copy and, pursuant to section 117 of the Copyright Act, a license is not technically required in order for the end-user to use the software with a computer.

However, virtually all mass-produced software sold at retail includes a clickwrap license which the end-user is forced to accept before the software can be installed or otherwise used with a computer. A clickwrap Agreement (also known as a "clickthrough" agreement or clickwrap license is a common type of agreement (often used in connection with Software Courts in the United States have found that an end-user of software who voluntarily accepts such a clickwrap license is legally bound to abide by the terms of the software license agreement, despite the fact that the end-user is the owner of the copy. Furthermore, contrary to the findings of numerous courts in the United States, proprietary licenses typically still assert that the software is specifically not sold.

The law is not clear on what an end-user's rights are when confronted by a clickwrap or other type of proprietary software license agreement on a copy of software owned by the end-user. Clearly the end-user will be bound by any agreements he/she voluntarily enters into. What is not clear is what, if any, rights the end-user retains if the terms of the license agreement are rejected. In terms of open source licenses, the end-user clearly retains the right to use the software if the license is rejected, since ownership of the software is not disputed. With proprietary licenses, where the software publisher claims to retain ownership of the software, this is an area of ongoing dispute.

See also

Wikibooks

External links

Daniel S Bricklin (born 16 July 1951) is the co-creator with Bob Frankston, of the VisiCalc Spreadsheet program
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