Software license

Software licenses in context of copyright according to Mark Webbink.[1] From left to right, fewer rights for a licensee/user of a software and more rights retained by the owner

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.[2] The only exception is software in the public domain. 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.

Software licenses and copyright law

Most distributed software can be categorized according to its license type (see table).

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 bundles the modifiable source code with the 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 internal business trade secret.[1] Contrary to popular belief, distributed unlicensed software (not in the public domain) is fully copyright protected, and therefore legally unusable (as no usage rights at all are granted by a license) until it passes into public domain after the copyright term has expired.[3] Examples of this are unauthorized software leaks or software projects which are placed on public software repositories like GitHub without a specified license.[4][5] 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.[6]

Software licenses and rights granted in context of the copyright according to Mark Webbink.[1] Expanded by freeware and sublicensing.
Rights granted Public domain Permissive FOSS
license (e.g. BSD license)
Copyleft FOSS
license (e.g. GPL)
Proprietary license Trade secret
Copyright retained No Yes Yes Yes Yes Very strict
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 Many lawsuits are filed by the owner
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, League of Legends Windows, the majority of commercial video games and their DRMs, Spotify, xSplit, TIDAL Server-side
Cloud computing
Games by Blizzard Entertainment, Rockstar, Activision, etc.
PlayStation Network and Xbox Live

Ownership vs. licensing

In the United States, Section 117 of the 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.

As many proprietary "licenses" only enumerate the rights that the user already has under § 117,[citation needed] 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[7] or Vernor v. Autodesk, Inc.[8][9]

The ownership of digital goods, like software applications and video games, is challenged by "licensed, not sold" EULAs of digital distributors like Steam.[10] 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 as ownership is transferred, and questions therefore the "licensed, not sold" EULA.[11][12][13][14][15][16] The Swiss-based company UsedSoft innovated the resale of business software and fought for this right in court.[17] In Europe, EU Directive 2009/24/EC expressly permits trading used computer programs.[18]

Other Languages
azərbaycanca: Proqram lisenziyası
Bahasa Indonesia: Lisensi perangkat lunak
Bahasa Melayu: Lesen perisian
Nederlands: Softwarelicentie
Simple English: Software licence
slovenščina: Programska licenca
српски / srpski: Licenca softvera
srpskohrvatski / српскохрватски: Softverska licenca