Lemma Soft Forums

Legally-speaking, that's all we've ever had, otherwise it would be legally-acceptable to replicate the software you have and give a copy to your friend. Nobody makes a fuss if you forge a knife following the pattern of a kitchen knife you bought and give that to a friend, after all, because the majority of the cost was for the materials and workmanship.

The difference is that up until recently, content creators have been more or less content to let us behave with our licenses as if we owned the thing, at least as far as personal use goes... and recently, they've been getting very uptight and a bit control-freaky about it. That said, the more they behave in this way the more consumers will start to expect different things from them... if I 'own' a software CD then it's my fault that the CD gets scratched and I need to go out and buy a new copy; if the money I paid was to license the software, then the CD is just a transport medium and I feel right in demanding a replacement for - at most - the price of a new 12cm bit of plastic, I'm certainly not going to pay for the software again. If they don't want me making "personal backup" copies (and in some cases, like console games, those 'backups' won't work anyway) then they need to provide an alternative.

That's not how copyright law works.

If you buy a book, you don't buy a license. You buy the actual book. You can legally read the book, modify the book, even resell the book, all without a license. You aren't allowed to make copies of the book because there's a specific law against that.

It's the same when you buy a game from a store. You bought it, it's yours. Even though it's yours, you aren't allowed to give a copy to your friend, because there's a law against that.

Legally speaking, a license is a way for the copyright holder to grant you additional rights. For example, if I have a game in the Apple App Store, then I grant Apple a license to distribute copies of my game in exchange for a share of the proceeds. A license may come with restrictions (as in the Apple case), but it can ultimately only grant additional rights. It cannot take away a right that you already have.

A game that you buy from a store may come with a licensing agreement. If you agree to the conditions of the license, the license may grant you additional rights. However, even if you don't accept the license, you are still the legal owner of that particular copy of the game, and you can still use it as you wish, within legal limits.

(Disclaimer: I am not a lawyer.)

Actually, I'm well aware how copyright law works. But when you buy a book, you don't own that wholly, either. You're actually buying something very similar to - say - a music CD; you own only the physical elements, not the words themselves. And it's the same as when you buy a piece of software; you own the metal and plastic of the disc, you own the cardboard of the box and the paper of the manual, but you don't own the patterns of the 1s and 0s that make up the software itself.

You chose to use simple phrasing - "If I paid for the game, then it's mine. I don't need to ask anybody's permission to use my own property" - so I responded in kind, but if you want a pedantic answer then I can do that too. Voight-Kampff suggested that creators were "moving towards" only selling licenses for things, but because of the way copyright law works, we've always bought licenses for software in particular, and digitally-distributed media, one way or another. The only other kind of sale of software that goes on is where people buy all rights, usually actually accomplished by buying the company that created it. What publishers have been doing recently is simply getting more restrictive in the things they allow you to do in the license that they sell you.



This is true. But it's also true that before you are given them via the license, you have pretty much no rights whatsoever to do anything with someone else's copyrighted work. That's the entire point of copyright, in fact, it restricts 'publishing', which is to say 'making public' - making available to people other than the creator/s. Everything you can do with your novel, music or software you can do because someone deliberately gave you permission to do it, usually implicitly by selling you a copy of it. Not the paper or the plastic, which are actually your possessions, but the copyrighted thing.


Click-through "end-user licenses" are a different thing, but even without them, when you buy an item of software you don't have the right to do whatever you want with it, and you never have had. Again, it's the same with other forms of media, it's just that generally the usage license isn't explicit because everybody knows what it is and isn't acceptable to do with a book, and the provisions of copyright law itself are enough. Sometimes it's not the case, and you get things like the warnings at the beginning of VHS cassettes saying "this recording is only licensed for viewing in private residences; it may not be shown in schools, theatres or oil rigs" or whatever. You bought the VHS cassette, and you can do what you like with the cassette, which is the bit you own, but you can't do what you like with the recording on it. On top of this there are lots of other reasons you can't do what you want with things you ostensibly 'own'; for example, creators have Moral Rights in most jurisdictions, providing that they can tell you to stop doing whatever you're doing with their work if they believe it infringes upon those rights. For example, if I sold someone a painting, they own the painting; they can hang it on their wall or burn it or take it off the frame and make a bag out of the canvas. Maybe I've sold them reproduction rights and they can make posters and postcards and sell those... but if they use it as the background for a Neo-Nazi poster, I can tell them to stop doing that, because I don't want my work associated with that kind of politics. They can't say that they painted it, because even if I sold them the painting, they still don't have the right of attribution.


If I buy a plot of land and find a stone under the ground there, then I can tell people I made it and I can use it as a background for my political posters and I can copy it and give the copies to my friends and I can do whatever I want, because unlike the book or the software you bought, I actually properly own the stone.






(And of course, there are also cases when I buy a book and I can do what I like with the contents - if the book was made sufficiently long ago, and all the people involved in its creation have been dead for long enough, then copyright law doesn't protect the book - whatever Disney would like, copyright is not implicit to all creations forever.)

A note on licenses.

As Jake says, when you buy a book, because of the way that international and US copyright law works, you've basically bought a license saying that you can read the book, but that you cannot reuse its content; that is, you can't use those words, characters, situations for your own writing.

As many have noted, this means that fanfiction and fanart is technically illegal. As many others have not realized, this means that authors are in a difficult position; in some cases, the authors are legally required to protect their copyright in order to maintain it, and they technically must sue fansites to prevent those fansites from being ammunition in copyright cases. Yes, it's a rediculous example, but it has happened.

This is the legal purpose of the Creative Commons licences and other less restrictive licenses in the United States; to specifically allow certain kinds of derivative work. For example:

"Fanwork is okay if you credit me and don't sell it" is a CC Attribution, Noncommercial license.

"You can distribute this unaltered for free over filesharing sites with credit if you include a message to do the same" is a CC Attribution, No Derivative Works, Share-Alike license.

"Just credit me if you use it" is an Attribution license.

Having these licenses is... well, it can be... an excellent marketing tool: the tabletop RPG Eclipse Phase has a CC Attribution, Noncommercial, Share-Alike license, and it's authors encourage their fans to distribute the free PDF version online. The net result was massively increased sales of their $35.00 retail hardcover edition.

That being said, these licenses are not for everyone, and they haven't, to my knowledge, been tested in court yet. So take the above with a grain of salt, and know that I'm biased towards using and recommending them.

Actually, there isn't a license here, unless one is agreed to both parties. The owner of a book has the right to do whatever he wants to it (read it, burn it, make it into wallpaper), subject to the limitations given in copyright laws. (Which prevent copying, translation, public performance, and derivative works, perhaps among other things). A license can change this, by either allowing some of the restricted rights, or taking away rights... but parties have to agree to a license for it to work.

Licenses like MIT, BSD, GPL, or Creative Commons work very nicely, because their basic bargain is that they allow you to do something restricted (like copying) in exchange for following some terms. It's not clear that the EULA-type licenses, which take away rights, are valid. (There appears to be a difference of law regarding this, even within the US.)

This is a hard area, because on one hand users don't like having their rights taken away from them, and at the same time, vendors want to sell enough copies of their game to turn a profit, which can be used to make more games. Trying to balance those two imperatives is very difficult.

What PyTom said.



This is also untrue, for two reasons:

1. The "legally required to protect" thingy applies to trademark law, not copyright law.

2. The author always has the option of granting the fansite a license to use the trademark. This meets the legal requirements of protecting the trademark without suing the fansite.

I hope we're not forgetting the part where the book example isn't entirely relevant because we're talking about software, which pretty much always comes with an explicit license agreement for particular reasons.

It's also worth noting that an explicit license is just a form of contract giving some permissions, it doesn't have to be called a license or be a succinct document dealing only with usage permissions to be enforceable. 'License' is just the convenient word we use to refer to those permissions which have been deliberately granted.

(There are explicitly-contracted licenses involved in the publication of a book as well, of course - but they exist between the author and the publisher, and the publisher and the printer, and so on.)

In the Linux world, most of the software does not require you to accept the license in order to run it. For example, you can run the Linux kernel or Ren'Py without ever accepting their licenses, just using what you're allowed to do under copyright law. (You can't redistribute either without accepting the license. That would include redistributing Ren'Py alongside a game.)



Of course, this is based on US law. It also assumes that a copy is sold (or given) to the user. Some companies try and claim they're not selling a copy; it's an unsettled point of law as to if those claims are valid. (And probably will be until the Supreme Court rules.)

So I'm curious, what are the terms in pretty much every open-source software license - including in the MIT license Ren'Py used last time I checked - disclaiming liability in the event of any problem with the software for? If it wasn't necessary for the user to be bound by the terms of the license to use the software, then those clauses would be functionally useless; there's no chance that a user is going to retroactively go off and agree to not hold the creator responsible after damage has already occurred!

Another, similar example - if this was the case, then how does one effect the "you can use this software for twenty days free of charge; after that you have to give me a pony to continue use" kind of license? If the user doesn't have to agree to the license to use the software just because he happened to come into possession of a physical copy of the software, how is the author ever going to get a pony? (Admittedly, I get the impression that most such ponies rely on the goodwill of the user, and I doubt anybody ever got prosecuted for using Alf's Photo Album for twenty-one days without delivering a pony, but it seems pretty unlikely that copyright law would make that kind of arrangement impossible.)

A more extreme example: are you suggesting that a person who visits a market and buys an obviously-illegally-copied edition of your $1000 commercial software on a DVD-R with marker pen title for $5, takes it home and proceeds to use it for years is doing absolutely nothing wrong at all? After all, the user doesn't need to agree to any license to use the software, all he needs is physical access to a copy of it! The market trader is the guy who made the copy onto DVD-R, right?


Most licenses don't actively require anything of the user if they just want to use the software, but it seems to me that that is a different thing. In fact, some licenses - such as the GPL - make a point of explicitly telling the user that if they only wish to use the software, they are subject to no extra conditions... this would also be pointless if they were in fact not subject to the license at all at this point; the GPL doesn't make any attempt to point out that the user doesn't have to do anything special under the GPL when driving their car, or when they talk to other people describing the software that's GPL licensed.

The succinct version - and I'll quote here from the EU's IPR Helpdesk, since they're as best as I'm aware a reasonably uninterested and government-funded advice bureau:


(Emphasis mine.)

Permission of the rights owner is referred to in common parlance as a 'license'. Sometimes we assume an implicit minimum-rights license when no alternative is provided (if I intentionally publically release software with no overt license, then it's reasonable to assume I'm giving you permission to run it), but where a license is made obvious, it's difficult to suggest that it doesn't apply. Maybe this is a big difference between US and EU copyright law, but I doubt it.




Also relevant:


If you think off-topicness of threads is a problem with the forum community, it behooves you to not become involved with it. Nevertheless, I still think that the better response is to split the off-topic part into a separate thread rather than complain about it.

I believe it's just there to point out that there is no warranty. This is similar to how if I sell you any other sort of "literary work", there's no implied warranty.



One would have to enter into a contract that limits your rights to less than what copyright law allows. That might be possible if you present the contract to the user before the download occurs. I'd be surprised if this was enforcable if the terms were sprung on the user after the copy was made.



This is exactly the same case as if you buy a photocopied book at a bookstore. To be honest, I don't know offhand how copyright deals with this case. But this isn't a problem that's limited to software, as the same problem exists in other media.




To quote the GPL3:



I don't think that a license that is not accepted can control someone's behavior. I think the GPL is just pointing out what copyright allows here, rather than trying to assert something novel.




I think this is a difference between EU and US law. Under US law, we explicitly have the rights to run software as part of copyright. (See the citation I gave above.)

Good point about splitting topics.

If it's just there to point out that there's no warranty, then it's kind of pointless; I mean, there's no clause in the (decidedly short) MIT license saying "this software does not come with a support contract", for example, which is something else that a lot of commercial software might give you and some users might for whatever reason expect. Why is nearly half of the MIT license's text devoted to something with no legal significance?

But it's also not just "no warranty", in the common usage of the term, it's "you as the user accept that any harm that occurs as a result of running this software is not the fault of the originator". If I have a warranty on my microwave then it means that should the microwave cease to function, I get it replaced or repaired on the manufacturing/selling company's bill. However, should a design defect in my microwave result in any harm to person or property despite my proper use of the equipment - say my hamster gets cooked despite being in the next room at the time - then in the case where there are no explicit warranty terms governing the sale or usage of the equipment, the microwave company is responsible. These clauses in software licenses are there to say that the originator isn't responsible if a design defect in their software wipes my hard drive and loses my thesis. I don't see how they can be enforced if the user hasn't already agreed to the license... and I don't see why they'd bother putting them in if it was the case that the user didn't have to agree to the license.



Not really. If I buy a photocopied book, then I don't have to do anything to it at all to use it; to use a piece of software, I have to make a copy of that software onto my computer's memory, probably after first making a copy to my computer's HDD. This is the reason that, at least in EU law, it's illegal to run software for which you don't have a valid license.

Now, it seems to me that this is the problem that the first provision of the US copyright law that you quoted is intended to get around; allowing the user to make a copy where necessary to use the software, since it nearly always is necessary. However, it's also the case that the provision in question is stated as only applying to 'owners' of software copies; I would suggest that the discussion as to whether licensees are 'owners' in this context is irrelevant if you're talking about someone who also has no license; by what mechanism can you then claim to be an 'owner'? Physical possession of something does not make you its owner in any sense under any other kind of law, to my knowledge; if I pick up a TV and walk out of a shop then the TV still belongs to the shop and they'll still send guys after me to get it back. Nor does physical possession of something illegally-obtained or illegally-sold give you any ownership rights normally, even if you gave someone money for it - why should it be different for software?



At the very least, this is apparently Not True in the EU, which is a significant user of GPLed software... if this is in fact actually true in the US and not just a simplification. After all, were it the case that accepting the license was required to run the software, the conditions upon the user would not be any different, since the GPL doesn't compel the user to do anything simply to run the software, it only compels them to do something when distributing it.

Alternative interpretation which is true everywhere: you are not required to accept the GPL in order to run a copy of a GPLed program because you may obtain some other parallel license from the copyright owner which allows you to use it without being bound by the terms of the GPL. It could be a clause stating, in a roundabout way designed to look like something else, that the GPL is not exclusive, it does not bar other licenses from being used on the same code at the same time. That said, it does also say that the GPL is the only license the software can ever be distributed under, which is either a big lie (albeit probably unintentional) or the most insidious and dastardly thing the FSF has ever done. ;-)

I researched this a bit. I will note that this explanation may only make sense under US law, which is what the GPL appears to have been written assuming.

Basically, in the US, there's the Uniform Commercial Code, which allows for implied warranties and liability. It also allows creators to disclaim these implied warranties, provided a conspicuous note doing so is distributed along with the software. By making it part of the license, we ensure that it isn't removed from the software. (Making it all caps is deemed to make it conspicuous.)



The way I understand US law, they're enforceable because they count as a disclaimer under the UCC, making any implied warranty/liability void.



Not really. If I buy a photocopied book, then I don't have to do anything to it at all to use it; to use a piece of software, I have to make a copy of that software onto my computer's memory, probably after first making a copy to my computer's HDD. This is the reason that, at least in EU law, it's illegal to run software for which you don't have a valid license.



No. But possession of things obtained legally does give you may rights over it. So that's probably the difference there... once I own a book or program, I can do anything I want to it, except for those things restricted by the copyright law.



This isn't the usual reading of this clause, as such a clause is unnecessary. I could take a commercial program I own the copyright to, and release it under the GPLv3, and I wouldn't have to have made an explicit provision for that in my commercial license. Similarly, there's no need for the GPL to mention an alternate license.

Take a look at the similar section from the GPLv2:



This makes it clear that the license has nothing to do with running the program at all, leaving copyright (and the limitations on what it covers) to step in.

This bit makes sense, thanks.



OK, but how do you know when you obtained a bit of software legally and when you obtained it illegally? The only source you have to tell you that your copy of the software is legal is the license, in which case you're picking a small section of the license to believe and to apply to you, and ignoring the rest... which isn't the way contracts usually work.




The smiley at the end of the paragraph was supposed to denote that it was a joke.

But it's interesting:



What it's saying in the GPLv2 isn't "the license doesn't apply when you are just using the software", it's "the license doesn't require anything of you when you're just using the software", which means the most common and normal interpretation (IMO) is that the license applies as normal, it's just that you don't have any obligations under it if you're just a user. "The act of running the program" is "not restricted" by the license, not "possible without accepting the license". It seems the FSF has changed this clause in meaning quite significantly in between versions 2 and 3...