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Last update: $Date: 2003/11/08 16:33:10 $ UTC

Software licensing, from the perspective of software sharing

Many software licenses exist, each putting various obligations on the user, contributors and/or distributors of the software. A special case exists, which is software in the public domain which is when software is not under copyright. In this case no obligation exists to anyone.

In theory software becomes part of the public domain when it is released explicitly to the public domain, or when it falls out of copyright. Currently copyright in Canada lasts for fifty years after the author's death. Given the speed at which software changes, both the sale-value and the use-value of software will be long gone before the term of copyright expires. This effectively means that no software will enter the public domain unless the author explicitly releases it to the public domain.

Using public domain as a center point, we will try to create a one-dimensional line where the positive direction involves more obligations to share and the negative direction involves more obligations not to share.

It needs to be recognized that this is a considerable simplification of software licensing given that some license agreements can be very complex, and software may be licensed under more than one license agreement at the same time. While FLOSS tends to have large numbers of software packages sharing identical licenses, proprietary software tends to have different licenses for different version of the same piece of software, or for different customers.


 source                                           non-Copyleft  Copyleft   
 under   typical        Freeware  Public          Free          Free
 NDA     proprietary  Shareware   Domain          Software      Software
 +-------+------------+-+---------+---------------+-------------+
 -                                0                             +

Note: The GNU General Public License is the most popular Copyleft Free Software license. The Another diagram can be seen with FSF's Categories of Free and Non-Free Software page. The FSF also provides a Various Licenses and Comments about Them page.

source code available, but only under non-disclosure agreement (NDA)

(Example: some parts of Microsoft's Shared Source initiative)

The Microsoft Shared Source Initiative is an initiative which in their words "is a source licensing framework that makes source code broadly available while preserving the intellectual property rights". Shared Source is not defined in simple terms by Microsoft, and includes many different licensing models which seem to not share much in common to warrant a similar sounding name.

A document authored by the Open Source Initiative called Shared Source: A Dangerous Virus. According to that document "as of November 2002, Microsoft's Shared Source program offering is actually a collection of eight different programs with different restrictions".

The most controvercial feature of the Shared Source Initiative is the inclusion in some of the programs of a non-disclosure agreement (NDA). In the eyes of a software developer who is wanting to share their talents in a variety of situations, including both non-Microsoft proprietary software and FLOSS projects, it is suggested that the NDA may 'taint' a software developer or company that signs the NDA from working on other similar non-Microsoft projects. For these developers it is considered legally safer for them to simply not see the Shared Source Initiative code in the first place. It is from this perspective the Shared Source Initiative is considered to have more obligations restricting information sharing than typical proprietary software.

typical proprietary softare

A typical license might indicate that you do not have the right to any access to source code, nor the right to copy the binary other than as specified by the license agreement. Most often there is a royalty fee per instance of the software (per computer, per user using it on a multi-person computer, per network connection for some server products).

In most cases there is not a Non-disclosure agreement convering any information learned during the running of the software. An experienced user of an application can use their experience to train others in how to use that application without needing to worry about any legal limits.

Shareware / Freeware

While there is no single organization offering a definition for these terms, they are most often used to describe proprietary software where the source code is not available, and the binary can be redistributed in unmodified format. Shareway comes with a request to pay a royalty to the author of the software, while Freeware comes with no royalty free at all.

It is important not to confused Shareware of Freeware with Free Software, as Shareware and Freeware do not adhere to the freedoms required by the Free Software and Open Source definitions.

Public Domain

With no obligations to anyone to share or not to share, this was defined as the center of this line.

non-Copyleft Free Software

(Example: BSD License)

The term Free Software is defined by the Free Software Foundation (FSF). The very related term Open Source is defined by the Open Source Initiative (OSI).

Copyleft Free Software

(Example: GNU General Public License)

Notes:

Reference the fact that the obligations imposed by both extremes of "Non-disclosure" (Microsoft Shared Source, NDA's) and "forced disclosure" (copyleft, GPL) are considered 'viruses' by the fans of the licensing models from the opposite part of the line.
Add in notes about complications relating to 'counting' software installations -- including CAAST/BSA study misinformation and David A. Wheeler: OSS/FS protects its users from licensing litigation and management costs
Section on "public licensing" from Innovation Agenda: Building the innovation infrastructure