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{{Computing law}}
{{Short description|Governs the use and/or redistribution of software}}
{{Short description|Governs the use and/or redistribution of software}}
{{Use American English|date=September 2020}}
{{Use American English|date=September 2020}}
{{use dmy dates|date=June 2024}}
[[File:Software_Categories_expanded.svg|thumb|upright=1.2|Diagram of software under various licenses according to the [[Free Software Foundation|FSF]] and their [[The Free Software Definition]]: on the left side "[[free software]]", on the right side "[[proprietary software]]". On both sides, and therefore mostly [[orthogonal]], "free download" ([[Freeware]]).]]
A '''software license''' is a legal instrument governing the use or redistribution of software.


Since the 1970s, [[software copyright]] has been recognized in the United States. Despite the copyright being recognized, most companies prefer to sell licenses rather than copies of the software because it enables them to enforce stricter terms on redistribution. Very few purchasers read any part of the license, initially [[shrink-wrap contract]]s and now most commonly encountered as [[clickwrap]] or [[browsewrap]]. The enforceability of this kind of license is a matter of controversy and is limited in some jurisdictions. [[Service-level agreement]]s are another type of software license where the vendor agrees to provide a level of service to the purchaser, often backed by financial penalties.
A '''software license''' is a legal instrument (usually by way of [[contract law]], with or without printed material) governing the use or redistribution of software. Under United States copyright law, all [[software]] is [[copyright]] protected, in both [[source code]] and [[object code]] forms, unless that software was developed by the United States Government, in which case it cannot be copyrighted.<ref name="fsm">{{cite web|url=http://freesoftwaremagazine.com/articles/what_if_copyright_didnt_apply_binary_executables/ |title=What if copyright didn't apply to binary executables? |date=2008-08-29| first=Terry |last=Hancock |publisher=[[Free Software Magazine]] |access-date=2016-01-25}}</ref> Authors of copyrighted software can donate their software to the [[public domain software|public domain]], in which case it is also not covered by copyright and, as a result, cannot be licensed.


[[Copyleft]] is a type of free license that mandates [[derivative work]]s to be licensed. The other types of free license lack this requirement: for [[permissive license]]s, attribution is typically the only requirement, and [[public-domain-equivalent license]]s have no restrictions. The proliferation of open-source licenses has compounded [[license compatibility]] issues, but all share some features: allowing redistribution and [[derivative work]]s under the same license, unrestricted access to the [[source code]], and nondiscrimination between different uses—in particular, allowing commercial use.
A typical software license grants the [[licensee]], typically an [[end-user]], 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]] under copyright.


{| class="wikitable"
{| class="wikitable"
!
!
! colspan="3" | Free and open (software must have source code provided)
! colspan="3" | Free and open
! colspan="3" | Non-free
! colspan="3" | Non-free
|-
|-
! !![[Public domain]] !! [[Permissive license]] !! [[Copyleft]] (protective license) !! [[Non-commercial activity|Noncommercial]] license !! [[Proprietary license]] !! [[Trade secret]]
! !![[Public domain]]{{sfn|O'Regan|2022|p=403}} and [[public-domain-equivalent license|equivalent licenses]] !! [[Permissive license]]<ref name=OSIlicenses>{{cite web |title=Licenses |url=https://opensource.org/licenses |website=Open Source Initiative |access-date=12 May 2024 |date=16 September 2022}}</ref>{{sfn|Sen|Subramaniam|Nelson|2008|p=212}} !! [[Copyleft]]<ref name=OSIlicenses/>{{sfn|Sen|Subramaniam|Nelson|2008|p=212}} !! [[Non-commercial activity|Noncommercial]] license{{sfn|Morin ''et al.''|2012|loc=Free and Open Source Software (FOSS) Licensing}} !! [[Proprietary license]]{{sfn|O'Regan|2022|p=394}} !! [[Trade secret]]{{sfn|O'Regan|2022|p=396}}
|-
|-
! scope=row | Description
! scope=row | Description
| Grants all rights || Grants use rights, including right to relicense (allows [[proprietization]], [[license compatibility]]) || Grants use rights, forbids [[proprietization]] || Grants rights for noncommercial use only. May be combined with copyleft. || Traditional use of [[copyright]]; no rights need be granted || No information made public
| Waives copyright protection || Grants use rights, including right to relicense (allows [[proprietization]], [[license compatibility]]) || Grants use rights, forbids [[proprietization]] || Grants rights for noncommercial use only. || Traditional use of [[copyright]]; no rights need be granted || No information made public
|-
|-
! scope=row | Software
! scope=row | Notable software licenses
| PD, [[CC0]] || [[MIT license|MIT]], [[Apache license|Apache]], [[Mozilla Public License|MPL]] || [[GPL]], [[GNU Affero General Public License|AGPL]] || [[Java Research License|JRL]], [[Aladdin Free Public License|AFPL]] || [[Proprietary software]], no public license || private, internal software
| PD, [[CC0]]{{sfn|Fagundes|Perzanowski|2020|p=524}} || [[MIT license|MIT]], [[Apache license|Apache]], [[Mozilla Public License|MPL]], [[BSD license|BSD]] || [[GPL]], [[GNU Affero General Public License|AGPL]] || [[Java Research License|JRL]]{{sfn|Davila|2015|p=6}} || [[Proprietary software]] ||
|-
! scope=row | Other creative works
| PD, [[CC0]] || [[CC BY]] || [[CC BY-SA]] || [[CC BY-NC]] || [[Copyright]], no public license || unpublished
|}
|}
{{clear}}
{{clear}}


== Software licenses and copyright law ==
== Software copyright ==
{{main|Software copyright}}
Most distributed software can be categorized according to its license type (see table).
{{Computing law}}

The [[source code]] (or compiled binaries in the form of [[object code]]){{sfn|Boyle|2003|p=45}} of a [[computer program]] is protected by [[copyright law]] that vests the owner with the exclusive right to copy the code. The underlying ideas or algorithms are not protected by copyright law, but are often treated as a [[trade secret]] and concealed by such methods as [[non-disclosure agreement]]s.{{sfn|O'Regan|2022|pp=394-396}} Software copyright has been recognized since the mid-1970s and is vested in the company that makes the software, not the employees or [[Independent contracting in the United States|contractor]]s who wrote it.{{sfn|O'Regan|2022|p=403}}
Two common categories for software under copyright law, and therefore with licenses which grant the [[licensee]] specific rights, are [[proprietary software]] and [[free and open-source software]] (FOSS). The distinct conceptual difference between the two is the granting of rights to modify and re-use a [[software product]] obtained by a customer: FOSS software licenses both rights to the customer and therefore [[Product bundling|bundles]] the modifiable [[source code]] with the software ("[[open-source software|open-source]]"), while proprietary software typically does not license these rights and therefore keeps the source code hidden ("[[closed source]]").

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]] (PD) or software which is non-distributed, non-licensed and handled as an internal business [[trade secret]].<ref name="redhat2005"/> Contrary to popular belief, distributed unlicensed source code (not in the public domain) is fully copyright protected, and therefore legally unusable in other projects (as no redistribution rights at all are granted by a license) until it passes into the public domain after the [[copyright term]] has expired.<ref>[http://blog.codinghorror.com/pick-a-license-any-license/ Pick a License, Any License] on codinghorror by [[Jeff Atwood]]</ref> Examples of this are unauthorized [[software leak]]s or software projects which are placed on public software repositories like [[GitHub]] without a specified license.<ref>[http://www.infoworld.com/article/2611422/open-source-software/github-finally-takes-open-source-licenses-seriously.html github-finally-takes-open-source-licenses-seriously] on [[InfoWorld|infoworld]].com by Simon Phipps (July 13, 2013)</ref><ref>[https://opensource.com/law/13/8/github-poss-licensing Post open source software, licensing and GitHub] on opensource.com by Richard Fontana (13 Aug 2013)</ref> As voluntarily handing software into the public domain (before reaching the copyright term) is problematic in some jurisdictions (for instance the [[law of Germany]]), there are also licenses granting PD-like rights, for instance the [[CC0]] or [[WTFPL]].<ref>[https://rd-alliance.org/sites/default/files/cc0-analysis-kreuzer.pdf Validity of the Creative Commons Zero 1.0 Universal Public Domain Dedication and its usability for bibliographic metadata from the perspective of German Copyright Law] by Till Kreutzer, attorney-at-law in [[Berlin, Germany]]</ref>


{| class="wikitable"
{| class="wikitable"
Line 38: Line 34:
|-
|-
! scope="col" | [[License|Rights granted]]
! scope="col" | [[License|Rights granted]]
! scope="col" | [[Public domain software|Public domain]]
! scope="col" | [[Public domain software|Public domain]] and [[Public-domain-equivalent license|equivalent]]
! scope="col" | [[Permissive license|Permissive]] [[Free and open-source software|FOSS]] license (e.g. [[BSD license]])
! scope="col" | [[Permissive license|Permissive]] [[Free and open-source software|FOSS]] license (e.g. [[BSD license]])
! scope="col" | [[Copyleft license|Copyleft]] FOSS license (e.g. [[GPL]])
! scope="col" | [[Copyleft license|Copyleft]] FOSS license (e.g. [[GPL]])
Line 63: Line 59:
|}
|}


=== Ownership vs. licensing ===
== Proprietary software licenses ==
[[File:Ohhh, Shockwave (117804940).jpg|thumb|A brief, written-out [[beta test]] software license issued by [[Macromedia]] in 1995]]
Many [[proprietary software|proprietary]] or open source software houses sell the software copy with a license to use it. There is no transferring of [[Ownership right|ownership]] 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 [[Contractual term|terms]] and [[Covenant (law)|conditions]] may specify further [[Provision (contracting)|legal clauses]] that users cannot negotiate individually or by way of a [[consumer organization]], and can uniquely accept or refuse, returning the product back to the vendor.<ref>{{cite web | url = https://www.allbusiness.com/the-difference-between-buying-and-licensing-software-928-1.html | title = The difference between ownership transfer (purchased) and licensing software | website = [[Allbusiness.com]] | archive-url = https://archive.today/20150522015824/https://www.allbusiness.com/the-difference-between-buying-and-licensing-software-928-1.html | archive-date = 22 May 2015 | url-status = live}}</ref> 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]]), or a mandatory public advertisement of the license terms, so as to be made readable by users before their purchasing.
The tendency to license [[proprietary software]], rather than sell it, dates from the time period before the existence, then the scope of software copyright protection was [[legal certainty|clear]]. These licenses have continued in use after software copyright was recognized in the courts, and are considered to grant the company extra protection compared to copyright law.{{sfn|Terasaki|2013|p=469}} According to [[United States federal law]], a company can restrict the parties to which it sells but it cannot prevent a buyer from reselling the product. Software licensing agreements usually prohibit resale, enabling the company to maximize revenue.{{sfn|Terasaki|2013|pp=469-470}}


Traditionally, software was distributed in the form of binary [[object code]] that could not be understood or modified by the user,{{sfn|Boyle|2003|p=45}} but could be downloaded and run. The user bought a perpetual license to use a particular version of the software.{{sfn|Clohessy ''et al.''|2020|pp=40-41}} [[Software as service]] (SaaS) vendors—who have the majority [[market share]] in [[application software]] {{as of|lc=yes|2023}}{{sfn|Watt|2023|p=4}}—rarely offer perpetual licenses.{{sfn|Dempsey |Kelliher|2018|p=48}} SaaS licenses are usually temporary and charged on a pay-per-usage or subscription basis,{{sfn|Dempsey |Kelliher|2018|pp=48, 57}} although other revenue models such as [[freemium]] are also used.{{sfn|Dempsey |Kelliher|2018|pp=61-63}} For customers, the advantages of temporary licenses include reduced upfront cost, increased flexibility, and lower overall cost compared to a perpetual license.{{sfn|Clohessy ''et al.''|2020|pp=40-41}} In some cases, the steep one-time cost demanded by sellers of traditional software were out of the reach of [[Small and medium-sized enterprises|smaller business]]es, but pay-per-use SaaS models makes the software affordable.{{sfn|Dempsey |Kelliher|2018|p=2}}
In the United States, Section 117 of the [[Copyright Act of 1976|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]]). 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.


===End-user license agreement (EULA)===
As many proprietary "licenses" only enumerate the rights that the user already has under {{UnitedStatesCode|17|117}},{{citation needed|date=August 2013}} and yet proclaim to take rights away from the user, these contracts may lack [[consideration]]. 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]]''<ref>{{cite web|url=https://www.eff.org/cases/umg-v-augusto|title=UMG v. Augusto |date=January 28, 2009}}</ref> or ''[[Vernor v. Autodesk, Inc.]]''<ref>{{cite web|url=https://arstechnica.com/tech-policy/news/2008/05/court-smacks-autodesk-affirms-right-to-sell-used-software.ars| title=Court smacks Autodesk, affirms right to sell used software |date=May 23, 2008 |publisher=[[Ars Technica]]}}</ref><ref>{{cite web|url=http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=437 |title=Vernor v. Autodesk |date=2007-11-14}}</ref>
{{main|End-user license agreement}}


Initially, end-user license agreements (EULAs) were printed on either the shrinkwrap packaging encasing the product (see [[shrink-wrap contract]]) or a piece of paper. The license often stipulated that a customer agreed if they did not return the product within a specified interval.{{sfn|Corbett|2019|p=455}} More recently, EULAs are most commonly found as [[clickwrap]] or [[browsewrap]] where the user's clicks or continued browsing are taken as a sign of agreement. As a result of the end of physical constraints, length increased.{{sfn|Kim|2016|pp=12, 21}} Most EULAs have been designed so that it is very difficult to read and understand them, but easy to agree to the licensing terms without reading them.{{sfn|Terasaki|2013|p=469}}{{sfn|Corbett|2019|p=455}} Regardless of how easy it is to access, very few consumers read any part of the license agreement.{{sfn|Bakos ''et al.''|2014|p=1}}{{sfn|Ben-Shahar |Schneider|2014|p=68}} Most assume the terms are unobjectionable or barely notice agreeing while installing the software.{{sfn|Terasaki|2013|pp=485-486}} Companies take advantage of consumers' inattention to insert provisions into EULAs.{{sfn|Corbett|2019|pp=456-457}}
The ownership of [[digital goods]], like software applications and [[video game]]s, is challenged by "licensed, not sold" [[EULA]]s of [[Digital Distribution|digital distributor]]s like [[Steam (service)|Steam]].<ref name="doweownsteamgames">{{cite web|url=http://www.rockpapershotgun.com/2012/02/01/thought-do-we-own-our-steam-games/ |title=Thought: Do We Own Our Steam Games? |publisher=[[Rock, Paper, Shotgun]] |first=John |last=Walker |date=2012-02-01 |access-date=2014-12-27 |quote=''I asked gamer lawyer Jas Purewal about this a short while back, not specifically about Valve, and he explained that the matter is still unresolved. “In fact,” he says, “it’s never been completely resolved for software generally[...]"''}}</ref> In the [[European Union]], the [[European Court of Justice]] 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 doctrine|first sale]] as ownership is transferred, and questions therefore the "licensed, not sold" EULA.<ref>{{cite web|url=http://www.gamerlaw.co.uk/2012/the-legality-of-second-hand-software-sales-in-the-eu/ |title=The legality of second hand software sales in the EU |first=Jas |last=Purewal |publisher=gamerlaw.co.uk}} ([http://www.gamasutra.com/view/news/173538/ mirror] on [[gamasutra.com]])</ref><ref>{{cite web|url=http://www.dw.de/dw/article/0,,16069323,00.html |title=Oracle loses court fight over software resale rules |quote=''A European court has ruled that it's permissible to resell software licenses even if the package has been downloaded directly from the Internet. It sided with a German firm in its legal battle with US giant Oracle.'' |date=2012-07-03 |access-date=2014-12-30 |author=hg/mz (AFP, dpa) |publisher=[[dw.de]]}}</ref><ref name="ecjforbes">{{cite web|url=https://www.forbes.com/sites/gregvoakes/2012/07/03/european-courts-rule-in-favor-of-consumers-reselling-downloaded-games/ |work=[[forbes.com]] |first=Greg |last=Voakes |title=European Courts Rule In Favor Of Consumers Reselling Downloaded Games |date=2012-07-03 |access-date=2014-12-30 |quote=''Could this be the victory we need for a “gamer’s bill of rights” ? DRM is an oft-cited acronym, and resonates negatively in the gaming community. The Court of Justice of the European Union ruled in favor of reselling downloaded games. Simply put, legally purchased and downloaded games will be treated like physical copies of the game, and consumers can then sell their ‘used’ game.''}}</ref><ref>{{cite web|url=http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=en |title=JUDGMENT OF THE COURT (Grand Chamber) |date=2012-07-03 |quote=''(Legal protection of computer programs — Marketing of used licenses for computer programs downloaded from the internet — Directive 2009/24/EC — Articles 4(2) and 5(1) — Exhaustion of the distribution right — Concept of lawful acquirer)''|publisher=InfoCuria – Case-law of the Court of Justice |access-date=2014-12-30}}</ref><ref>{{cite web|url=https://arstechnica.com/tech-policy/2012/07/top-eu-court-upholds-right-to-resell-downloaded-software/|title=Top EU court upholds right to resell downloaded software |author=Timothy B. Lee |date=2012-07-03 |publisher=[[Ars Technica]]}}</ref><ref>{{cite web|url=https://abcnews.go.com/Technology/wireStory/eu-court-oks-resale-software-licenses-16704351 |title=EU Court OKs Resale of Software Licenses |publisher=AP}}</ref> The Swiss-based company [[UsedSoft]] innovated the resale of business software and fought for this right in court.<ref>{{Cite web |url=https://www.twobirds.com/en/news/articles/2013/ecj-usedsoft-ruling |title=ecj-usedsoft-ruling |access-date=2018-03-21 |archive-date=2018-09-14 |archive-url=https://web.archive.org/web/20180914132444/https://www.twobirds.com/en/news/articles/2013/ecj-usedsoft-ruling |url-status=dead }}</ref> In Europe, [[Directive 2009/24/EC|EU Directive 2009/24/EC]] expressly permits trading used computer programs.<ref name="2009/24/EC">[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:111:0016:0022:EN:PDF ''Directive 2009/24/EC of the European Parliament and the Council.''] Official Journal of the European Union Accessed on 14 March 2014.</ref>


Proprietary software is usually offered under a restrictive license that bans copying and reuse and often limits the purchaser to using the software on one computer.{{sfn|O'Regan|2022|p=394}}{{sfn|Morin ''et al.''|2012|loc=Proprietary Licensing}} [[Source code]] is rarely available. Derivative software works and [[reverse engineering]] are usually explicitly prohibited.{{sfn|Morin ''et al.''|2012|loc=Proprietary Licensing}} Many EULAs allow the vendor to collect information about the user and use it in unrestricted ways.{{sfn|Carpenter|2023|pp=485-486}} Some EULAs restrict the ability of users to exercise copyright over derivative work made using the software, such as creative creations in the [[virtual world]]s of [[video games]].{{sfn|Ahuja|2016|p=381}}{{sfn|Corbett|2019|p=456}}
== Proprietary software licenses ==
{{further|Proprietary software}}
{{see also|End-user license agreement}}


Most disclaim any [[software product liability|liability]] for harms caused by the product,{{sfn|Carpenter|2023|pp=480-481}} and prevent the purchaser from accessing the court system to seek a remedy.{{sfn|Carpenter|2023|pp=481-482}} Furthermore, many EULAs allow the vendor to change the terms at any time and the customer must choose between agreeing or ceasing use of the product, without getting a refund.{{sfn|Carpenter|2023|p=485}} It is common for EULAs to allow unilateral termination by the vendor for any number of vague reasons or none at all.{{sfn|Carpenter|2023|pp=482-483}}
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]] (EULA), but ownership of those copies remains with the software publisher (hence use of the term "[[Proprietary software|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.


EULAs, almost always offered on a [[Standard form contract|take-it-or-leave-it basis]] as a non-negotiable condition for using the software,{{sfn|Carpenter|2023|p=478}} are very far from the prototypical contract where both parties fully understand the terms and agree of their own free will.{{sfn|Corbett|2019|p=460}} There has been substantial debate on to what extent the agreements can be considered binding. Before 1996 in the United States, [[clickwrap]] or [[browsewrap]] licenses were not held to be binding, but since then they often have been.{{sfn|Terasaki|2013|p=471}}{{sfn|Kim|2016|pp=12, 21}} Under the New Digital Content Directive effective in the European Union, EULAs are only enforceable to the extent that they do not breach reasonable consumer expectations. The gap between expectations and the content of EULAs is especially wide when it comes to restrictions on copying and transferring ownership of digital content.{{sfn |Oprysk|Sein|2020|pp=620-621}} Many EULAs contain stipulations that are likely unenforceable depending on the jurisdiction. Software vendors keep these unenforceable provisions in the agreements, perhaps because users rarely resort to the legal system to challenge them.{{sfn|Corbett|2019|p=461}}
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]], simultaneous use of the software by multiple users, and publication of benchmarks or performance tests.


===Service-level agreement (SLA)===
There are numerous types of licensing models, varying from simple '''perpetual licenses''' and '''floating licenses''' (also known as '''concurrent 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 licensing]] 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.<ref name=Scholten>{{cite web|last=Scholten |first=Thomas |title=Software Licensing |url=http://www.softwareresearches.net/|access-date=21 May 2012}}</ref>
{{main|Service-level agreement}}
Service-level agreements are often used for [[enterprise software]] and guarantee a level of service, such as software performance or time to respond to issue raised by the customer. Many stipulate financial penalties if the service falls short of the agreed standard.{{sfn|O'Regan|2022|pp=151, 219, 224, 405}} SLAs often cover such aspects as availability, reliability, price, and security using quantifiable metrics.{{sfn|Qazi ''et al.''|2024|loc=Performance evaluation parameters}} Multi-tier SLAs are common in [[cloud computing]] because of the use of different computing services that may be managed by different companies.{{sfn|Rana | Ziegler |2010|p=188}} SLAs in cloud computing are an area under active research {{as of|lc=yes|2024}}.{{sfn|Qazi ''et al.''|2024|loc=Conclusion}}


== Free and open-source software licenses ==
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.
{{Main|Free software license|Open-source license}}


Before the open-source movement in the 1980s, almost all software was proprietary and did not disclose its [[source code]].{{sfn|Bernelin|2020|p=96}} Open-source licensing is intended to maximize openness and minimize barriers to software use, dissemination, and follow-on innovation.{{sfn|Morin ''et al.''|2012|loc=Free and Open Source Software (FOSS) Licensing}}
Maintenance sometimes includes [[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).<ref name=Scholten/>


Open-source licenses share a number of key characteristics:{{sfn|Sen|Subramaniam|Nelson|2008|p=209}}
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.<ref name=Scholten/>
*Free redistribution: Anyone can redistribute the software, for free or for cost, without the permission of or payment to the copyright holder.{{sfn|Sen|Subramaniam|Nelson|2008|p=209}}
* Unrestricted, public access to the [[source code]]{{sfn|Sen|Subramaniam|Nelson|2008|p=209}}—what the term ''open source'' refers to{{sfn|Morin ''et al.''|2012|loc=Open Source versus Closed Source}}
* Users may modify the software and release [[derivative work]]s, either under the same terms as the free software or, in some cases, under a different license.{{sfn|Sen|Subramaniam|Nelson|2008|p=209}}
*Nondiscrimination between different uses,{{sfn|Sen|Subramaniam|Nelson|2008|p=209}} including commercial use.{{sfn|Davila|2015|p=6}}{{sfn|Morin ''et al.''|2012|loc=Free and Open Source Software (FOSS) Licensing}}
The [[Open Source Initiative]] vets and approves new open-source licenses that comply with its [[Open Source Definition]].{{sfn|Sen|Subramaniam|Nelson|2008|p=209}}


== Free and open-source software licenses ==
===Types of open-source licenses===
[[File:Open-source-license-chart.svg|thumb|alt=A pie chart displays the most commonly used open source license as Apache at 30%, MIT at 26%, GPL at 18%, BSD at 8%, LGPL at 3%, MPL at 2%, and remaining 13% as licenses with below 1% market share each.|The most popular open source licenses as of 2022 are the [[Apache License]] (permissive), the [[MIT License]] (permissive), and the [[GNU General Public License|GPL]] (copyleft).]]
[[File:Software_Categories_expanded.svg|thumb|300px|Diagram of software under various licenses according to the [[Free Software Foundation|FSF]] and their [[The Free Software Definition]]: on the left side "[[free software]]", on the right side "[[proprietary software]]". On both sides, and therefore mostly [[orthogonal]], "free download" ([[Freeware]]).]]
{{Main|Free software license|Open source software license}}
There are several organizations in the FOSS domain who give out guidelines and definitions regarding software licenses. [[Free Software Foundation]] maintains non-exhaustive lists of software licenses following their [[The Free Software Definition]] and licenses which the FSF considers non-free for various reasons.<ref>[https://www.gnu.org/licenses/ License list] – [[Free Software Foundation]]</ref> The FSF distinguishes additionally between free software licenses that are [[License compatibility|compatible]] or incompatible with the FSF license of choice, the [[copyleft]] [[GNU General Public License]]. The [[Open Source Initiative]] defines a list of certified open-source licenses following their [[The Open Source Definition]].<ref>[https://opensource.org/licenses/category Open Source Licenses by Category] on opensource.org</ref> Also the [[Debian]] project has a list of licenses which follow their [[Debian Free Software Guidelines]].<ref>[https://wiki.debian.org/DFSGLicenses DFSGLicenses] on debian.org</ref>


*If software is in the [[public domain]], the owner's copyright has been extinguished and anyone may use the work with no copyright restrictions.{{sfn|O'Regan|2022|p=403}}
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]]), and the protective [[share-alike]] ([[copyleft|copyleft Licenses]]).
*Non-restrictive licenses allow free reuse of the work without restrictions on the licensing of [[derivative work]]s.{{sfn|Sen|Subramaniam|Nelson|2008|p=212}} Many of them require attribution of the original creators.{{sfn|Morin ''et al.''|2012|loc=Permissive versus Copyleft}} The first open-source license was a non-restrictive license intended to facilitate scientific collaboration: the [[Berkeley Software Distribution]] (BSD), named after the [[University of California, Berkeley]] in 1978.{{sfn|Smith|2022|loc=§&nbsp;3.2.1.1}}
*[[Copyleft]] licenses (also known as "share-alike"),{{sfn|Morin ''et al.''|2012|loc=Permissive versus Copyleft}} require [[source code]] to be distributed with software and require the source code be made available under a similar license.{{sfn|Sen|Subramaniam|Nelson|2008|pp=211-212}}{{sfn|St. Laurent|2004|pp=38-39}} Copyleft represents the farthest that reuse can be restricted while still being considered free software.{{sfn|Davila|2015|p=5}} Strong copyleft licenses, such as the [[GNU General Public License]] (GPL), allow for no reuse in proprietary software, while weak copyleft, such as the related [[GNU Lesser General Public License]] (LGPL), do allow reuse in some circumstances.{{sfn|Sen|Subramaniam|Nelson|2008|p=212}} Copyleft licenses are perceived by developers as a way of ensuring that their contributions do not create unfair advantages for others.{{sfn|Sen|Subramaniam|Nelson|2008|p=212}}{{sfn|Davila|2015|pp=5-6}} Another motivation for choosing copyleft is to promote open source through its requirements for derivative works:{{sfn|Morin ''et al.''|2012|loc=Permissive versus Copyleft}} Stallman states that "the central idea of copyleft is to use copyright law, but flip it over to serve the opposite of its usual purpose: instead of a means of privatizing software, [copyright] becomes a means of keeping software free."{{sfn|Joy|2022|pp=990-992}}


Outside of software, noncommercial-only [[Creative Commons]] licenses have become popular among some artists who wish to prevent others from profiting excessively from their work.{{sfn|Davila|2015|pp=5-6}} However, software that is made available for [[noncommercial]] use only is not considered open source.{{sfn|Davila|2015|p=6}} [[Sun Microsystems]]' noncommercial-only [[Java Research License]] was rejected by the open-source community, and in 2006 the company released most of Java under the GPL.{{sfn|Davila|2015|p=6}}
An example of a copyleft free software license is the often used [[GNU General Public License]] (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.<ref>{{cite web |url=https://www.gnu.org/licenses/gpl.html |title=The GNU General Public License v3.0 – GNU Project – Free Software Foundation (FSF) |publisher=fsf.org |access-date=24 March 2010}}</ref>


===Compatibility===
Examples of [[permissive free software licenses]] are the [[BSD license]] and the [[MIT license]], 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 [[proprietary software]] license.
{{see also|License compatibility}}
[[File:GPL-Compatible.svg|thumb|upright=1.5|Compatibility chart for some open-source software licenses]]
Since 1989,{{sfn|Bernelin|2020|p=96}} a variety of [[open-source license]]s for software have been created.{{sfn|Sen|Subramaniam|Nelson|2008|p=208}} Choosing an open-source software license has grown increasingly difficult due to the [[license proliferation|proliferation of licenses]],{{sfn|Alamoudi ''et al.''|2020|p=537}}{{sfn|Bernelin|2020|p=94}} many of which are only trivially distinct.{{sfn|Morin ''et al.''|2012|loc=Compatibility, Proliferation, Fragmentation, and Directionality}} Many licenses are incompatible with each other, hampering the goals of the free software movement.{{sfn|Bernelin|2020|p=98}} Translation issues, ambiguity in licensing terms, and incompatibility of some licenses with the law in certain jurisdictions compounds the problem.{{sfn|Bernelin|2020|pp=100, 102}}


Although downloading an open-source module is quick and easy, complying with the licensing terms can be more difficult.{{sfn|Ombredanne|2020|p=105}} The amount of software dependencies means that engineers working on complex projects must often rely on software license management software in order to help them achieve compliance with the licensing terms of open-source components.{{sfn|Ombredanne|2020|p=106}} Many open-source software files do not unambiguously state the license, increasing the difficulties of compliance.{{sfn|Ombredanne|2020|p=105}} When combining code bases, the original licenses can be maintained for separate components, and the larger work released under a compatible license.{{sfn|St. Laurent|2004|pp=159-163}} This compatibility is often one-way. Public domain content can be used anywhere as there is no copyright claim, but code acquired under any almost any set of terms cannot be waved to the public domain. Permissive licenses can be used within copyleft works, but copyleft material cannot be released under a permissive license. Some weak copyleft licenses can be used under the GPL and are said to be GPL-compatible. GPL software can only be used under the GPL or AGPL.{{sfn|Smith|2022|loc=§&nbsp;3.3}}
It was under debate some time if [[public domain software]] and public domain-like licenses can be considered as a kind of FOSS license. Around 2004 lawyer [[Lawrence Rosen (attorney)|Lawrence Rosen]] argued in the essay ''"Why the public domain isn't a license"'' software could not truly be [[Waiver|waived]] into public domain and cannot therefore be interpreted as very permissive FOSS license,<ref>{{cite web|url=http://www.rosenlaw.com/lj16.htm |title=Why the public domain isn't a license |author=Lawrence Rosen |author-link=Lawrence Rosen (attorney) |date=2004-05-25 |access-date=2016-02-22 |publisher=rosenlaw.com}}</ref> a position which faced opposition by [[Daniel J. Bernstein]] and others.<ref>[https://cr.yp.to/publicdomain.html Placing documents into the public domain] by [[Daniel J. Bernstein]] on cr.yp.to ''"Most rights can be voluntarily abandoned ("waived") by the owner of the rights. Legislators can go to extra effort to create rights that can't be abandoned, but usually they don't do this. In particular, you can voluntarily abandon your United States copyrights: "It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).""'' (2004)</ref> In 2012 the dispute was finally resolved when Rosen accepted the [[CC0]] as an [[open source license]], while admitting that contrary to his previous claims, copyright can be waived away, backed by [[Ninth circuit]] decisions.<ref>{{cite web |url=https://lists.opensource.org/pipermail/license-review/2012-March/001679.html |quote=''The case you referenced in your email, Hampton v. Paramount Pictures, 279 F.2d 100 (9th Cir. Cal. 1960), stands for the proposition that, at least in the Ninth Circuit, a person can indeed abandon his copyrights (counter to what I wrote in my article) -- but it takes the equivalent of a manifest license to do so. :-)[...] For the record, I have already voted +1 to approve the CC0 public domain dedication and fallback license as OSD compliant. I admit that I have argued for years against the "public domain" as an open source license, but in retrospect, considering the minimal risk to developers and users relying on such software and the evident popularity of that "license", I changed my mind. One can't stand in the way of a fire hose of free public domain software, even if it doesn't come with a better FOSS license that I trust more.'' |author=Lawrence Rosen |author-link=Lawrence Rosen (attorney) |date=2012-03-08 |publisher=opensource.org |title=(License-review) (License-discuss) CC0 incompliant with OSD on patents, (was: MXM compared to CC0) |url-status=dead |archive-url=https://web.archive.org/web/20160312093735/https://lists.opensource.org/pipermail/license-review/2012-March/001679.html |archive-date=2016-03-12 }}</ref>

===Enforceability===
{{further|Open source license litigation}}
Free and open-source software licenses have been successfully [[Open source license litigation|enforced in civil]] court since the mid-2000s.{{sfn|Smith|2022|loc=§&nbsp;3.4.1}} Courts have found that distributing software indicates acceptance of the license's terms.{{sfn|Smith|2022|p=106}} However, developers typically achieve compliance without lawsuits. [[Social pressure]]s, such as the potential for community backlash, are often sufficient.{{sfn|St. Laurent|2004|pp=158-159}} [[Cease and desist]] letters are a common method to bring companies back into compliance, especially in Germany.{{sfn|Ballhausen|2022|p=127}}

A long-debated subject within the FOSS community is whether open-source licenses are "bare licenses" or [[contract]]s.{{sfn|Walden|2022|loc=§&nbsp;1.1}} A bare license is a set of conditions under which actions otherwise restricted by [[intellectual property]] laws are permitted.{{sfn|Smith|2022|loc=§&nbsp;3.4.1}} Under the bare license interpretation, advocated by the [[Free Software Foundation]] (FSF), a case is brought to court by the copyright holder as [[copyright infringement]].{{sfn|Smith|2022|loc=§&nbsp;3.4.1}} Under the contract interpretation, a case can be brought to court by an involved party as a [[breach of contract]].{{sfn|Smith|2022|loc=§&nbsp;3.4.2}} United States and French courts have tried cases under both interpretations.{{sfn|Smith|2022|loc=§&nbsp;3.4}}

===Value===
More than 90 percent of companies use open-source software as a component of their proprietary software.{{sfn|Butler ''et al.''|2022|p=1}} The decision to use open-source software, or even engage with open-source projects to improve existing open-source software, is typically a pragmatic business decision.{{sfn|Butler ''et al.''|2022|p=11152}}{{sfn|Davila|2015|p=7}} When proprietary software is in direct competition with an open-source alternative, research has found conflicting results on the effect of the competition on the proprietary product's price and quality.{{sfn|Zhou |Choudhary|2022|p=731}}

For decades, some companies have made servicing of an open-source software product for enterprise users as their business model. These companies control an open-source software product, and instead of charging for licensing or use, charge for improvements, integration, and other servicing.{{sfn|August ''et al.''|2021|pp=1-2}} [[Software as a service]] (SaaS) products based on open-source components are increasingly common.{{sfn|August ''et al.''|2021|p=1}}

Open-source software is preferred for scientific applications, because it increases transparency and aids in the validation and acceptance of scientific results.{{sfn|Morin ''et al.''|2012|loc=Compatibility, Proliferation, Fragmentation, and Directionality}}


== See also ==
== See also ==
Line 119: Line 139:
== References ==
== References ==
{{Reflist}}
{{Reflist}}
==Sources==

{{refbegin|indent=yes}}
*{{cite journal |last1=Ahuja |first1=Neha |title=Commercial Creations: The Role of End User License Agreements in Controlling the Exploitation of User Generated Content |journal=John Marshall Review of Intellectual Property Law |date=2016 |volume=16 |pages=381–410 |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/johnmars16&div=22&id=&page=}}
*{{cite book |last1=Alamoudi |first1=Emad |last2=Mehmood |first2=Rashid |last3=Aljudaibi |first3=Wajdi |last4=Albeshri |first4=Aiiad |last5=Hasan |first5=Syed Hamid |title=Smart Infrastructure and Applications: Foundations for Smarter Cities and Societies |date=2020 |publisher=Springer International Publishing |isbn=978-3-030-13705-2 |pages=537–559 |language=en |chapter=Open Source and Open Data Licenses in the Smart Infrastructure Era: Review and License Selection Frameworks|ref={{sfnref|Alamoudi ''et al.''|2020}}}}
*{{cite journal |last1=Anesa |first1=Patrizia |title=Translating end-user license agreements: issues, strategies and techniques |journal=ASp. La revue du GERAS |date=1 March 2014 |issue=65 |pages=87–102 |doi=10.4000/asp.4205 |url=https://journals.openedition.org/asp/4205#tocto1n5 |language=en |issn=1246-8185}}
*{{cite journal |last1=August |first1=Terrence |last2=Chen |first2=Wei |last3=Zhu |first3=Kevin |title=Competition Among Proprietary and Open-Source Software Firms: The Role of Licensing in Strategic Contribution |journal=Management Science |date=2021 |volume=67 |issue=5 |pages=3041–3066 |doi=10.1287/mnsc.2020.3674|ref={{sfnref|August et al.|2021}}}}
*{{cite journal |last1=Bakos |first1=Yannis |last2=Marotta-Wurgler |first2=Florencia |last3=Trossen |first3=David R. |title=Does Anyone Read the Fine Print? Consumer Attention to Standard-Form Contracts |journal=The Journal of Legal Studies |date=2014 |volume=43 |issue=1 |pages=1–35 |doi=10.1086/674424|ref={{sfnref|Bakos ''et al.''|2014}}}}
*{{cite book |last1=Ballhausen |first1=Miriam |title=Open Source Law, Policy and Practice |date=2022 |publisher=Oxford University Press |isbn=978-0-19-886234-5 |pages=126–140 |chapter=Copyright Enforcement}}
*{{cite book |last1=Ben-Shahar |first1=Omri |last2=Schneider |first2=Carl E. |title=More Than You Wanted to Know: The Failure of Mandated Disclosure |date=2014 |publisher=Princeton University Press |isbn=978-0-691-16170-9 |language=en}}
*{{cite journal |last1=Bernelin |first1=Margo |title=The compatibility of open/free licences: a legal imbroglio |journal=International Journal of Law and Information Technology |date=2020 |volume=28 |issue=2 |pages=93–111 |doi=10.1093/ijlit/eaaa010}}
*{{cite journal |last1=Boyle |first1=James |title=The Second Enclosure Movement and the Construction of the Public Domain |journal=Law and Contemporary Problems |date=2003 |volume=66 |issue=1 |pages=33–74 |url=https://scholarship.law.duke.edu/lcp/vol66/iss1/2/ |issn=0023-9186}}
* {{cite journal | last1=Butler | first1=Simon | last2=Gamalielsson | first2=Jonas | last3=Lundell | first3=Björn | last4=Brax | first4=Christoffer | last5=Mattsson | first5=Anders | last6=Gustavsson | first6=Tomas | last7=Feist | first7=Jonas | last8=Kvarnström | first8=Bengt | last9=Lönroth | first9=Erik | title=Considerations and challenges for the adoption of open source components in software-intensive businesses | journal=Journal of Systems and Software | publisher=Elsevier BV | volume=186 | year=2022 | issn=0164-1212 | doi=10.1016/j.jss.2021.111152 | page=111152|ref={{sfnref|Butler et al.|2022}}}}
*{{cite journal |last1=Carpenter |first1=Owen |title=EULA, or Eulogy? Reckoning End User License Agreements and Near-Future Cyborgs |journal=Health Matrix: Journal of Law-Medicine |date=2023 |volume=33 |pages=467–498 |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/hmax33&div=12&id=&page=}}
*{{cite book |last1=Clohessy |first1=Trevor |last2=Acton |first2=Thomas |last3=Morgan |first3=Lorraine |title=Measuring the Business Value of Cloud Computing |date=2020 |publisher=Springer International Publishing |isbn=978-3-030-43198-3 |pages=39–55 |ref={{sfnref|Clohessy et al.|2020}} |language=en |chapter=The SaaS Payoff: Measuring the Business Value of Provisioning Software-as-a-Service Technologies}}
* {{cite journal | last=Corbett | first=Susan | title=Computer game licences: The EULA and its discontents | journal=Computer Law & Security Review | volume=35 | issue=4 | year=2019 | issn=0267-3649 | doi=10.1016/j.clsr.2019.03.007 | pages=453–461}}
*{{cite book |last1=Davila |first1=Jacinto |title=Societal Benefits of Freely Accessible Technologies and Knowledge Resources|chapter=The Political Logic of Free, Libre, Open Source Software |pages= 1–24 |date=2015 |publisher=IGI Global |isbn=978-1-4666-8337-2 |language=en}}
*{{cite book |last1=Dempsey |first1=David |last2=Kelliher |first2=Felicity |title=Industry Trends in Cloud Computing: Alternative Business-to-Business Revenue Models |date=2018 |publisher=Springer International Publishing |isbn=978-3-319-87693-1 |language=en}}
* {{Cite journal |last1=Fagundes |first1=Dave |last2=Perzanowski |first2=Aaron |title=Abandoning Copyright |date=November 2020 |journal=William & Mary Law Review |volume=62 |issue=2 |pages=487–569}}
* {{Cite journal |last=Joy |first=Reagan |date=2022 |title=The Tragedy of the Creative Commons: An Analysis of How Overlapping Intellectual Property Rights Undermine the Use of Permissive Licensing |journal=Case Western Reserve Law Review |volume=72 |issue=4 |pages=977–1013}}
* {{cite book| last=Kim | first=Nancy S. | chapter=Wrap contracting and the online environment: Causes and cures | publisher=Edward Elgar Publishing | date=2016 | chapter-url=https://www.elgaronline.com/edcollchap/edcoll/9781783479917/9781783479917.00010.xml |title=Research Handbook on Electronic Commerce Law |isbn=978-1-78347-992-4 |language=en}}
*{{Cite book |last=Langer |first=Arthur M. |title=Guide to Software Development: Designing and Managing the Life Cycle |date=2016 |publisher=Springer |isbn=978-1-4471-6799-0 |language=en}}
*{{cite journal |last1=Morin |first1=Andrew |last2=Urban |first2=Jennifer |last3=Sliz |first3=Piotr |title=A Quick Guide to Software Licensing for the Scientist-Programmer |journal=PLOS Computational Biology |date=2012 |volume=8 |issue=7 |pages=e1002598 |doi=10.1371/journal.pcbi.1002598 |doi-access=free |pmid=22844236 |bibcode=2012PLSCB...8E2598M |language=en |issn=1553-7358|ref={{sfnref|Morin et al.|2012}}}} {{Creative Commons text attribution notice|cc=by4}}
*{{cite journal |last1=Ombredanne |first1=Philippe |title=Free and Open Source Software License Compliance: Tools for Software Composition Analysis |journal=Computer |date=2020 |volume=53 |issue=10 |pages=105–109 |doi=10.1109/MC.2020.3011082}}
*{{cite journal |last1=Oprysk |first1=Liliia |last2=Sein |first2=Karin |title=Limitations in End-User Licensing Agreements: Is There a Lack of Conformity Under the New Digital Content Directive? |journal=IIC - International Review of Intellectual Property and Competition Law |date=June 2020 |volume=51 |issue=5 |pages=594–623 |doi=10.1007/s40319-020-00941-y}}
*{{cite book |last1=O'Regan |first1=Gerard |title=Concise Guide to Software Engineering: From Fundamentals to Application Methods |date=2022 |publisher=Springer Nature |isbn=978-3-031-07816-3 |language=en}}
*{{cite journal |last1=Qazi |first1=Faiza |last2=Kwak |first2=Daehan |last3=Khan |first3=Fiaz Gul |last4=Ali |first4=Farman |last5=Khan |first5=Sami Ullah |title=Service Level Agreement in cloud computing: Taxonomy, prospects, and challenges |journal=Internet of Things |date=2024 |volume=25 |pages=101126 |doi=10.1016/j.iot.2024.101126 |url=https://www.sciencedirect.com/science/article/pii/S2542660524000684#sec8 |ref={{sfnref|Qazi et al.|2024}} |issn=2542-6605|doi-access=free }}
*{{cite book | last1=Rana | first1=Omer | last2=Ziegler | first2=Wolfgang | title=Grids, P2P and Services Computing | chapter=Research Challenges in Managing and Using Service Level Agreements | publisher=Springer | date=2010 | isbn=978-1-4419-6793-0}}
*{{cite journal | last1=Sen | first1=Ravi | last2=Subramaniam | first2=Chandrasekar | last3=Nelson | first3=Matthew L. | title=Determinants of the Choice of Open Source Software License | journal=Journal of Management Information Systems | publisher=Informa UK Limited | volume=25 | issue=3 | year=2008 | issn=0742-1222 | doi=10.2753/mis0742-1222250306 | pages=207–240}}
* {{cite book | last=Smith | first=P McCoy | title=Open Source Law, Policy and Practice | chapter=Copyright, Contract, and Licensing in Open Source | publisher=Oxford University PressOxford | date=2022-10-20 | isbn=978-0-19-886234-5 | doi=10.1093/oso/9780198862345.003.0003 | pages=71–112}}
* {{cite book |last=St. Laurent |first=Andrew M. |date=2004 |title=Understanding Open Source and Free Software Licensing |publisher=[[O'Reilly Media]] |url=https://freecomputerbooks.com/Understanding-Open-Source-and-Free-Software-Licensing.html |isbn=978-0596005818}}
*{{cite journal |last1=Terasaki |first1=Michael |title=Do End User License Agreements Bind Normal People |journal=Western State University Law Review |date=2013 |volume=41 |pages=467 |url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/wsulr41&div=35&id=&page=}}
* {{cite book | last=Walden | first=Ian | title=Open Source Law, Policy and Practice | chapter=Open Source as Philosophy, Methodology, and Commerce: Using Law with Attitude | publisher=Oxford University Press | date=2022-10-20 | isbn=978-0-19-886234-5 | doi=10.1093/oso/9780198862345.003.0001}}
*{{cite book |last1=Watt |first1=Andy |title=Building Modern SaaS Applications with C# And . NET: Build, Deploy, and Maintain Professional SaaS Applications |date=2023 |publisher=Packt |isbn=978-1-80461-087-9 |language=en}}
*{{cite journal |last1=Zhou |first1=Zach Zhizhong |last2=Choudhary |first2=Vidyanand |title=Impact of Competition from Open Source Software on Proprietary Software |journal=Production and Operations Management |date=2022 |volume=31 |issue=2 |pages=731–742 |doi=10.1111/poms.13575}}
{{refend}}
==Further reading==
*{{cite book |last1=Classen |first1=H. Ward |title=The Practical Guide to Software Licensing and Cloud Computing |date=2022 |publisher=American Bar Association |isbn=978-1-64105-750-9 |language=en}}
== External links ==
== External links ==
{{wikibooks|FOSS Licensing}}
{{wikibooks|FOSS Licensing}}
* {{webarchive |url=https://web.archive.org/web/20110721052929/http://knol.google.com/k/jon-gillespie-brown/what-is-software-licensing/3v64x901bjfe2/2 |date=July 21, 2011 |title=''Definition of software licensing'' }} by Jon Gillespie-Brown at knol.google.de
* {{webarchive |url=https://web.archive.org/web/20110721052936/http://knol.google.com/k/why-product-activation-for-software-is-becoming-widespread |date=July 21, 2011 |title=''Why product activation for software is becoming widespread'' }} knol.google.com

{{Software distribution}}
{{Software distribution}}


{{DEFAULTSORT:Software License}}
{{DEFAULTSORT:Software License}}
[[Category:Software licenses| ]]
[[Category:Software licensing| ]]
[[Category:Terms of service]]
[[Category:Terms of service]]

Revision as of 19:28, 4 November 2024

Diagram of software under various licenses according to the FSF and their The Free Software Definition: on the left side "free software", on the right side "proprietary software". On both sides, and therefore mostly orthogonal, "free download" (Freeware).

A software license is a legal instrument governing the use or redistribution of software.

Since the 1970s, software copyright has been recognized in the United States. Despite the copyright being recognized, most companies prefer to sell licenses rather than copies of the software because it enables them to enforce stricter terms on redistribution. Very few purchasers read any part of the license, initially shrink-wrap contracts and now most commonly encountered as clickwrap or browsewrap. The enforceability of this kind of license is a matter of controversy and is limited in some jurisdictions. Service-level agreements are another type of software license where the vendor agrees to provide a level of service to the purchaser, often backed by financial penalties.

Copyleft is a type of free license that mandates derivative works to be licensed. The other types of free license lack this requirement: for permissive licenses, attribution is typically the only requirement, and public-domain-equivalent licenses have no restrictions. The proliferation of open-source licenses has compounded license compatibility issues, but all share some features: allowing redistribution and derivative works under the same license, unrestricted access to the source code, and nondiscrimination between different uses—in particular, allowing commercial use.

Free and open Non-free
Public domain[1] and equivalent licenses Permissive license[2][3] Copyleft[2][3] Noncommercial license[4] Proprietary license[5] Trade secret[6]
Description Waives copyright protection Grants use rights, including right to relicense (allows proprietization, license compatibility) Grants use rights, forbids proprietization Grants rights for noncommercial use only. Traditional use of copyright; no rights need be granted No information made public
Notable software licenses PD, CC0[7] MIT, Apache, MPL, BSD GPL, AGPL JRL[8] Proprietary software
Main article: Software copyright
Part of a series on
Legal aspects of computing

The source code (or compiled binaries in the form of object code)[9] of a computer program is protected by copyright law that vests the owner with the exclusive right to copy the code. The underlying ideas or algorithms are not protected by copyright law, but are often treated as a trade secret and concealed by such methods as non-disclosure agreements.[10] Software copyright has been recognized since the mid-1970s and is vested in the company that makes the software, not the employees or contractors who wrote it.[1]

Software licenses and rights granted in context of the copyright according to Mark Webbink.[11] Expanded by freeware and sublicensing.
Rights granted Public domain and equivalent Permissive FOSS license (e.g. BSD license) Copyleft FOSS license (e.g. GPL) Freeware / Shareware / Freemium Proprietary license Trade secret
Copyright retained No Yes Yes Yes Yes Yes
Right to perform Yes Yes Yes Yes Yes No
Right to display Yes Yes Yes Yes Yes No
Right to copy Yes Yes Yes Often No Lawsuits are filed by the owner against copyright infringement the most
Right to modify Yes Yes Yes No No No
Right to distribute Yes Yes, under same license Yes, under same license Often No No
Right to sublicense Yes Yes No No No No
Example software SQLite, ImageJ Apache web server, ToyBox Linux kernel, GIMP, OBS Irfanview, Winamp Windows, the majority of commercial video games and their DRMs, Spotify, xSplit, TIDAL Server-side
Cloud computing programs and services,
forensic applications, and other line-of-business work.

Proprietary software licenses

A brief, written-out beta test software license issued by Macromedia in 1995

The tendency to license proprietary software, rather than sell it, dates from the time period before the existence, then the scope of software copyright protection was clear. These licenses have continued in use after software copyright was recognized in the courts, and are considered to grant the company extra protection compared to copyright law.[12] According to United States federal law, a company can restrict the parties to which it sells but it cannot prevent a buyer from reselling the product. Software licensing agreements usually prohibit resale, enabling the company to maximize revenue.[13]

Traditionally, software was distributed in the form of binary object code that could not be understood or modified by the user,[9] but could be downloaded and run. The user bought a perpetual license to use a particular version of the software.[14] Software as service (SaaS) vendors—who have the majority market share in application software as of 2023[15]—rarely offer perpetual licenses.[16] SaaS licenses are usually temporary and charged on a pay-per-usage or subscription basis,[17] although other revenue models such as freemium are also used.[18] For customers, the advantages of temporary licenses include reduced upfront cost, increased flexibility, and lower overall cost compared to a perpetual license.[14] In some cases, the steep one-time cost demanded by sellers of traditional software were out of the reach of smaller businesses, but pay-per-use SaaS models makes the software affordable.[19]

End-user license agreement (EULA)

Main article: End-user license agreement

Initially, end-user license agreements (EULAs) were printed on either the shrinkwrap packaging encasing the product (see shrink-wrap contract) or a piece of paper. The license often stipulated that a customer agreed if they did not return the product within a specified interval.[20] More recently, EULAs are most commonly found as clickwrap or browsewrap where the user's clicks or continued browsing are taken as a sign of agreement. As a result of the end of physical constraints, length increased.[21] Most EULAs have been designed so that it is very difficult to read and understand them, but easy to agree to the licensing terms without reading them.[12][20] Regardless of how easy it is to access, very few consumers read any part of the license agreement.[22][23] Most assume the terms are unobjectionable or barely notice agreeing while installing the software.[24] Companies take advantage of consumers' inattention to insert provisions into EULAs.[25]

Proprietary software is usually offered under a restrictive license that bans copying and reuse and often limits the purchaser to using the software on one computer.[5][26] Source code is rarely available. Derivative software works and reverse engineering are usually explicitly prohibited.[26] Many EULAs allow the vendor to collect information about the user and use it in unrestricted ways.[27] Some EULAs restrict the ability of users to exercise copyright over derivative work made using the software, such as creative creations in the virtual worlds of video games.[28][29]

Most disclaim any liability for harms caused by the product,[30] and prevent the purchaser from accessing the court system to seek a remedy.[31] Furthermore, many EULAs allow the vendor to change the terms at any time and the customer must choose between agreeing or ceasing use of the product, without getting a refund.[32] It is common for EULAs to allow unilateral termination by the vendor for any number of vague reasons or none at all.[33]

EULAs, almost always offered on a take-it-or-leave-it basis as a non-negotiable condition for using the software,[34] are very far from the prototypical contract where both parties fully understand the terms and agree of their own free will.[35] There has been substantial debate on to what extent the agreements can be considered binding. Before 1996 in the United States, clickwrap or browsewrap licenses were not held to be binding, but since then they often have been.[36][21] Under the New Digital Content Directive effective in the European Union, EULAs are only enforceable to the extent that they do not breach reasonable consumer expectations. The gap between expectations and the content of EULAs is especially wide when it comes to restrictions on copying and transferring ownership of digital content.[37] Many EULAs contain stipulations that are likely unenforceable depending on the jurisdiction. Software vendors keep these unenforceable provisions in the agreements, perhaps because users rarely resort to the legal system to challenge them.[38]

Service-level agreement (SLA)

Main article: Service-level agreement

Service-level agreements are often used for enterprise software and guarantee a level of service, such as software performance or time to respond to issue raised by the customer. Many stipulate financial penalties if the service falls short of the agreed standard.[39] SLAs often cover such aspects as availability, reliability, price, and security using quantifiable metrics.[40] Multi-tier SLAs are common in cloud computing because of the use of different computing services that may be managed by different companies.[41] SLAs in cloud computing are an area under active research as of 2024.[42]

Free and open-source software licenses

Main articles: Free software license and Open-source license

Before the open-source movement in the 1980s, almost all software was proprietary and did not disclose its source code.[43] Open-source licensing is intended to maximize openness and minimize barriers to software use, dissemination, and follow-on innovation.[4]

Open-source licenses share a number of key characteristics:[44]

  • Free redistribution: Anyone can redistribute the software, for free or for cost, without the permission of or payment to the copyright holder.[44]
  • Unrestricted, public access to the source code[44]—what the term open source refers to[45]
  • Users may modify the software and release derivative works, either under the same terms as the free software or, in some cases, under a different license.[44]
  • Nondiscrimination between different uses,[44] including commercial use.[8][4]

The Open Source Initiative vets and approves new open-source licenses that comply with its Open Source Definition.[44]

Types of open-source licenses

A pie chart displays the most commonly used open source license as Apache at 30%, MIT at 26%, GPL at 18%, BSD at 8%, LGPL at 3%, MPL at 2%, and remaining 13% as licenses with below 1% market share each.
The most popular open source licenses as of 2022 are the Apache License (permissive), the MIT License (permissive), and the GPL (copyleft).
  • If software is in the public domain, the owner's copyright has been extinguished and anyone may use the work with no copyright restrictions.[1]
  • Non-restrictive licenses allow free reuse of the work without restrictions on the licensing of derivative works.[3] Many of them require attribution of the original creators.[46] The first open-source license was a non-restrictive license intended to facilitate scientific collaboration: the Berkeley Software Distribution (BSD), named after the University of California, Berkeley in 1978.[47]
  • Copyleft licenses (also known as "share-alike"),[46] require source code to be distributed with software and require the source code be made available under a similar license.[48][49] Copyleft represents the farthest that reuse can be restricted while still being considered free software.[50] Strong copyleft licenses, such as the GNU General Public License (GPL), allow for no reuse in proprietary software, while weak copyleft, such as the related GNU Lesser General Public License (LGPL), do allow reuse in some circumstances.[3] Copyleft licenses are perceived by developers as a way of ensuring that their contributions do not create unfair advantages for others.[3][51] Another motivation for choosing copyleft is to promote open source through its requirements for derivative works:[46] Stallman states that "the central idea of copyleft is to use copyright law, but flip it over to serve the opposite of its usual purpose: instead of a means of privatizing software, [copyright] becomes a means of keeping software free."[52]

Outside of software, noncommercial-only Creative Commons licenses have become popular among some artists who wish to prevent others from profiting excessively from their work.[51] However, software that is made available for noncommercial use only is not considered open source.[8] Sun Microsystems' noncommercial-only Java Research License was rejected by the open-source community, and in 2006 the company released most of Java under the GPL.[8]

Compatibility

See also: License compatibility
Compatibility chart for some open-source software licenses

Since 1989,[43] a variety of open-source licenses for software have been created.[53] Choosing an open-source software license has grown increasingly difficult due to the proliferation of licenses,[54][55] many of which are only trivially distinct.[56] Many licenses are incompatible with each other, hampering the goals of the free software movement.[57] Translation issues, ambiguity in licensing terms, and incompatibility of some licenses with the law in certain jurisdictions compounds the problem.[58]

Although downloading an open-source module is quick and easy, complying with the licensing terms can be more difficult.[59] The amount of software dependencies means that engineers working on complex projects must often rely on software license management software in order to help them achieve compliance with the licensing terms of open-source components.[60] Many open-source software files do not unambiguously state the license, increasing the difficulties of compliance.[59] When combining code bases, the original licenses can be maintained for separate components, and the larger work released under a compatible license.[61] This compatibility is often one-way. Public domain content can be used anywhere as there is no copyright claim, but code acquired under any almost any set of terms cannot be waved to the public domain. Permissive licenses can be used within copyleft works, but copyleft material cannot be released under a permissive license. Some weak copyleft licenses can be used under the GPL and are said to be GPL-compatible. GPL software can only be used under the GPL or AGPL.[62]

Enforceability

Further information: Open source license litigation

Free and open-source software licenses have been successfully enforced in civil court since the mid-2000s.[63] Courts have found that distributing software indicates acceptance of the license's terms.[64] However, developers typically achieve compliance without lawsuits. Social pressures, such as the potential for community backlash, are often sufficient.[65] Cease and desist letters are a common method to bring companies back into compliance, especially in Germany.[66]

A long-debated subject within the FOSS community is whether open-source licenses are "bare licenses" or contracts.[67] A bare license is a set of conditions under which actions otherwise restricted by intellectual property laws are permitted.[63] Under the bare license interpretation, advocated by the Free Software Foundation (FSF), a case is brought to court by the copyright holder as copyright infringement.[63] Under the contract interpretation, a case can be brought to court by an involved party as a breach of contract.[68] United States and French courts have tried cases under both interpretations.[69]

Value

More than 90 percent of companies use open-source software as a component of their proprietary software.[70] The decision to use open-source software, or even engage with open-source projects to improve existing open-source software, is typically a pragmatic business decision.[71][72] When proprietary software is in direct competition with an open-source alternative, research has found conflicting results on the effect of the competition on the proprietary product's price and quality.[73]

For decades, some companies have made servicing of an open-source software product for enterprise users as their business model. These companies control an open-source software product, and instead of charging for licensing or use, charge for improvements, integration, and other servicing.[74] Software as a service (SaaS) products based on open-source components are increasingly common.[75]

Open-source software is preferred for scientific applications, because it increases transparency and aids in the validation and acceptance of scientific results.[56]

See also

References

  1. ^ a b c O'Regan 2022, p. 403.
  2. ^ a b "Licenses". Open Source Initiative. 16 September 2022. Retrieved 12 May 2024.
  3. ^ a b c d e Sen, Subramaniam & Nelson 2008, p. 212.
  4. ^ a b c Morin et al. 2012, Free and Open Source Software (FOSS) Licensing.
  5. ^ a b O'Regan 2022, p. 394.
  6. ^ O'Regan 2022, p. 396.
  7. ^ Fagundes & Perzanowski 2020, p. 524.
  8. ^ a b c d Davila 2015, p. 6.
  9. ^ a b Boyle 2003, p. 45.
  10. ^ O'Regan 2022, pp. 394–396.
  11. ^ Larry Troan (2005). "Open Source from a Proprietary Perspective" (PDF). RedHat Summit 2006 Nashville. redhat.com. p. 10. Archived from the original (PDF) on 22 January 2014. Retrieved 29 December 2015.
  12. ^ a b Terasaki 2013, p. 469.
  13. ^ Terasaki 2013, pp. 469–470.
  14. ^ a b Clohessy et al. 2020, pp. 40–41.
  15. ^ Watt 2023, p. 4.
  16. ^ Dempsey & Kelliher 2018, p. 48.
  17. ^ Dempsey & Kelliher 2018, pp. 48, 57.
  18. ^ Dempsey & Kelliher 2018, pp. 61–63.
  19. ^ Dempsey & Kelliher 2018, p. 2.
  20. ^ a b Corbett 2019, p. 455.
  21. ^ a b Kim 2016, pp. 12, 21.
  22. ^ Bakos et al. 2014, p. 1.
  23. ^ Ben-Shahar & Schneider 2014, p. 68.
  24. ^ Terasaki 2013, pp. 485–486.
  25. ^ Corbett 2019, pp. 456–457.
  26. ^ a b Morin et al. 2012, Proprietary Licensing.
  27. ^ Carpenter 2023, pp. 485–486.
  28. ^ Ahuja 2016, p. 381.
  29. ^ Corbett 2019, p. 456.
  30. ^ Carpenter 2023, pp. 480–481.
  31. ^ Carpenter 2023, pp. 481–482.
  32. ^ Carpenter 2023, p. 485.
  33. ^ Carpenter 2023, pp. 482–483.
  34. ^ Carpenter 2023, p. 478.
  35. ^ Corbett 2019, p. 460.
  36. ^ Terasaki 2013, p. 471.
  37. ^ Oprysk & Sein 2020, pp. 620–621.
  38. ^ Corbett 2019, p. 461.
  39. ^ O'Regan 2022, pp. 151, 219, 224, 405.
  40. ^ Qazi et al. 2024, Performance evaluation parameters.
  41. ^ Rana & Ziegler 2010, p. 188.
  42. ^ Qazi et al. 2024, Conclusion.
  43. ^ a b Bernelin 2020, p. 96.
  44. ^ a b c d e f Sen, Subramaniam & Nelson 2008, p. 209.
  45. ^ Morin et al. 2012, Open Source versus Closed Source.
  46. ^ a b c Morin et al. 2012, Permissive versus Copyleft.
  47. ^ Smith 2022, § 3.2.1.1.
  48. ^ Sen, Subramaniam & Nelson 2008, pp. 211–212.
  49. ^ St. Laurent 2004, pp. 38–39.
  50. ^ Davila 2015, p. 5.
  51. ^ a b Davila 2015, pp. 5–6.
  52. ^ Joy 2022, pp. 990–992.
  53. ^ Sen, Subramaniam & Nelson 2008, p. 208.
  54. ^ Alamoudi et al. 2020, p. 537.
  55. ^ Bernelin 2020, p. 94.
  56. ^ a b Morin et al. 2012, Compatibility, Proliferation, Fragmentation, and Directionality.
  57. ^ Bernelin 2020, p. 98.
  58. ^ Bernelin 2020, pp. 100, 102.
  59. ^ a b Ombredanne 2020, p. 105.
  60. ^ Ombredanne 2020, p. 106.
  61. ^ St. Laurent 2004, pp. 159–163.
  62. ^ Smith 2022, § 3.3.
  63. ^ a b c Smith 2022, § 3.4.1.
  64. ^ Smith 2022, p. 106.
  65. ^ St. Laurent 2004, pp. 158–159.
  66. ^ Ballhausen 2022, p. 127.
  67. ^ Walden 2022, § 1.1.
  68. ^ Smith 2022, § 3.4.2.
  69. ^ Smith 2022, § 3.4.
  70. ^ Butler et al. 2022, p. 1.
  71. ^ Butler et al. 2022, p. 11152.
  72. ^ Davila 2015, p. 7.
  73. ^ Zhou & Choudhary 2022, p. 731.
  74. ^ August et al. 2021, pp. 1–2.
  75. ^ August et al. 2021, p. 1.

Sources

Further reading

  • Classen, H. Ward (2022). The Practical Guide to Software Licensing and Cloud Computing. American Bar Association. ISBN 978-1-64105-750-9.
Wikibooks has a book on the topic of: FOSS Licensing
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