FOSS Licensing/Software and Copyright

FOSS Licensing

About the Authors — Preface — Introduction — Overview of Intellectual Property Rights — Copyright Basics — Software and Copyright — How is FOSS Different from Proprietary Software? — How to Make the Source Free or Open — Scenarios — Online Legal Resources and Materials — Glossary — About APDIP — About IOSN

Extension of Copyright Law to Software

Since 1980, it has become an international trend for copyright to be applied to computer software. The WIPO Copyright Treaty (1996) also states that computer software should be regulated by copyright law.

Copyrightability of the Source Code and the Object Code

Software can be expressed in both source code and object code. However, TRIPs states that software copyright applies to both forms.^[1] In practice, proprietary software companies tend to release their product only in object code, and keep the source code of the product as their trade secret.^[2]

As mentioned earlier, under copyright law only the expression of ideas but not the ideas themselves can be copyrighted. For example, with a literary work or a music composition, although the form of the work is copyrighted, other people can use the ideas expressed in the work as inspiration for their new works. With software, ideas can only be perceived by reading the source code. Since the source code is not often accessible, in effect the proprietary company is able to withhold the ideas that underpin the software. This contravenes the principle that only form and not the idea should be exclusively owned – a principle designed to maintain the balance between private and public interests.

Users’ Rights Denied in Proprietary Licensing Models

The revision of the US copyright law in 1976 and shifts in the information technology (IT) industry in the 1970s changed the practices of software distribution. Before that, users received both source and binary object codes. Today, under proprietary license models, proprietary software companies usually make the source code inaccessible to ensure and maximize profit. Studying a proprietary software is usually explicitly prohibited. For example, even in licenses for developers, for example, Microsoft End User Agreement and Microsoft Developer Network Subscription, reverse-engineering, decompilation and disassembly are not allowed except and only to the extent that it is expressly permitted by the applicable law.^[3]

For end-users, proprietary licenses usually allow only one copy of the software for each computer. That means, if the user has one desktop and one laptop, or two desktops, she will have to purchase two copies if she wants to run the program legally on both machines. If there are defects in the program that she has legally purchased, her only recourse is to contact the proprietary company regarding these defects. She will not be able to legally debug the program herself, or use unofficial patches, since modification of the program is not allowed. In effect, users of proprietary software are completely dependent upon the vendor.

Under the traditional proprietary licensing model, end-users were not able to protect their interest in a cooperative manner. The FOSS movement has contributed to the positive transformation of this situation. The Free Software Foundation (FSF), which was founded in 1985, is dedicated to promoting users’ rights to use, study, copy, modify and/or redistribute computer programs.^[4] These are the rights that are not usually granted to end-users in the licenses of proprietary software.

Footnotes

^ Available from http://www.wto.org/english/docs_e/legal_e/legal_e.htm#TRIPs ; accessed on 28 June 2004.
^ Halligan, R. M., “How to Protect Intellectual Property Right in Computer Software;” available from http://my.execpc.com/~mhallign/computer.html ; accessed on 1 July 2004.
^ Available from http://www.msdnaa.net/EULA/NA/English.aspx ; accessed on 4 August 2004.
^ Available from http://www.fsf.org/fsf/fsf.htm ; accessed on 4 August 2004.

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