All about licence-free softwares

You've come to this page because you've asked a question similar to the following:

What are licence-free softwares?

This is the Frequently Given Answer to such questions.

A licence-free software is a softwares that is copyrighted but not published under a copyright licence. As such, you are permitted to do everything that the law says does not violate the rights of the copyright holder.

What exactly this means varies from country to country, as copyright law varies from country to country. However, in very broad strokes things are much the same in most of the countries that are signatories to the Berne Copyright Convention, simply because all of those countries take a common approach to copyright.

People are generally surprised how much one can do in the absence of a copyright licence. The way that copyright licences are presented leads people to believe that they aren't allowed to do anything at all unless it is licenced. However, the law is not in fact so strict.

The copyright licences that are used by commercial software houses imply that one is not allowed to do anything at all in the absence of such a licence, and that if one does not accept the licence one cannot use the software.1 So, too, do the older "copyleft" copyright licences employed by the Free Software Foundation. (See § 4 of the GNU General Public Licence version 2, for example.2) Dan Bernstein says that one has been "bamboozled by Microsoft" if one believes this.

Whilst it is false to say that Microsoft is behind this, it is most certainly true that the people behind these copyright licences, including the drafters of the GNU GPL version 2, misrepresented the situation. The principle embodied within Hanlon's Razor says that this is best attributed to they themselves not understanding copyright law, and, knowing this, framing their copyright licences in the most rigid terms possible in order to cover themselves.3

The elimination of people owning softwares to assert copyrights over them, and thus the elimination of copyright licencing, is of course the goal of the Free Software movement. Licence-free softwares are thus the ideal. In practice, however, that ideal cannot be attained with the law as it currently stands, because although the law permits more than many people expect it to permit, it still allows copyright holders to prevent others from distributing copies of softwares.

But in the case of most licence-free softwares, the softwares are distributed directly by the copyright owners anyway. So whilst B cannot distribute A's softwares to C, C can always obtain the softwares directly from A. Furthermore, B can provide to C a set of instructions for modifying A's softwares, once C has obtained them directly from A, in the form of a patch. The patch is B's work, over which B has sole copyright.

And this is how most licence-free softwares are distributed. For example: When Dan Bernstein's qmail package was copyrighted, before it was released to the public domain, one could obtain qmail from Bernstein and a set of patches to it (a few of which can be found here) from others.

It has been argued that having to obtain the original software and a set of patches, and then apply the patches to the original, is unusual, tedious, and inconvenient. However, this argument founders on three points:

What the law allows for licence-free softwares in the United State

The relevant part of the United States Code is 17 USC § 117. This says that:

Therefore you can make backups of, compile, and run all softwares, whether they have copyright licences or not.

What the law allows for licence-free softwares in the United Kingdom

The relevant part of United Kingdom law is The Copyrights Designs and Patents Act (as amended) § 50A, 50B, 50C, and 50D. These say that:

Therefore you can make backups of, compile, run, patch bugs in, and decompile (for specific and narrow purposes) all softwares, whether they have copyright licences or not.

1. This is why "click-through licences" are as they are. The software vendor is trying to turn the copyright licence from a licence into a contract, one that users agree to after and in addition to the contract of sale that they entered into in order to actually buy the copy of the software in the first place. The legal foundation for such one-sided contracts, where it isn't clear what consideration is actually being exchanged in one direction and where one of the parties is entirely deprived of bargaining power, is somewhat shaky.

Moreover, the legal situation where one has not agreed to a click-through contract and patched the software so that it runs anyway despite that would be rather interesting. One cannot be held to the terms of a contract that one has not agreed to, and one does not violate copyright (in the U.K. and the U.S. at least) by modifying a lawfully purchased copy of a program in order to make it actually run.

2. The revised FSF "copyleft" copyright licences attempt to make things clearer, by explicitly defining themselves to be covering just those acts that the law actually says are copyright infringements in the first place. Notice the GNU GPL version 3's definition of "propagation".

3. In its background to the creation of the GNU GPL version 3, the Free Software Foundation openly acknowledges that the GNU GPL version 2 "was a license constructed by one US layman and his lawyers".

4. The MAINTAINERS file for Linux version 2.6.23 is 93KiB.

5. Such as Linus' kernel source code tree, the "-mm" kernel source code tree, the Debian kernel source code tree, and so forth.

© Copyright 2007 Jonathan de Boyne Pollard. "Moral" rights asserted.
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