The Software License Unveiled: How Legislation by License Controls Software Access

227 Pages·2009·1.27 MB·English

by  Douglas E. Phillips

Th e Software License Unveiled
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Th e Software License
Unveiled
How Legislation by License Controls
Software Access
douglas e. phillips
1
1
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Library of Congress Cataloging-in-Publication Data
Phillips, Douglas E.
Th e software license unveiled : how legislation by license controls software access / Douglas E. Phillips.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-534187-4 ((hardback) : alk. paper)
1. Copyright licenses. 2. Copyright—Computer programs 3. Open source software—Law and legislation.
I. Title.
K1443.C6P49 2009
346.04′82—dc22
2008053094
_____________________________________________
1 2 3 4 5 6 7 8 9
Printed in the United States of America on acid-free paper
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject
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To the memory of my parents,
Edmond Phillips
and
Doris Campbell Phillips
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Contents
Introduction: Th e Sacrament of the Software License ix
part i Th e Proprietary Software License in Law and Practice
1 Emergence of the Legislative License 3
1.1 Licensed, Not Sold 7
1.2 Contract-Forming Terms 15
1.3 What You May and May Not Do 22
1.4 Comply or Forfeit 35
1.5 Enabling DRM 38
1.6 Licensor Exculpation 41
1.7 Dispute Resolution 43
1.8 Adware and Spyware 46
1.9 And Th at’s Not All 48
2 Th e Product Is the Product 53
2.1 What Is Intangible Property? 55
2.2 What Is Software? 57
2.3 Rivalry and Excludability 63
2.4 No Ghost in the Machine 68
2.5 Software as a Service 72
2.6 Implications of Tangibility 73
3 Very Long Text: Th e Reality of the EULA 75
3.1 Software License Readability 77
3.2 Software License Effi ciency 81
3.3 Eff ects of Information Asymmetry 84
3.4 Does the Internet Come to the Rescue? 92
3.5 Common Standards and Implicit Legal Knowledge 95
3.6 Virtues of Simplicity 97
3.7 What Can Be Done? 100
vii
viii contents
part ii Th e Free and Open Source Alternative
4 GPL: A Private Copyleft Act 111
4.1 License Ideology: Stallman, Gates, and the
Ethics of Copying 112
4.2 UNIX, GNU, and Linux 116
4.3 Free Software, Copyleft, and the GPL 119
4.4 GPL “Enforceability” 125
4.5 Permissions and Patents 133
4.6 No More Readable Th an the EULA 137
4.7 Free as in Free Beer 141
5 From “Free” to “Open Source” 147
5.1 A Focus on Process 148
5.2 Open Source License Proliferation 151
5.3 Process and Usability 153
5.4 Usability and Subsidy 158
6 Th e GPL, the Public Domain, and the Web 173
6.1 Proprietary Capture: Th e X Window “Paradigm” 174
6.2 Proprietary Capture and GPLv3 177
6.3 CERN Web Software and Mosaic 178
6.4 Eff ects of a GPL-Licensed Mosaic 180
6.5 A More Proprietary Network? 183
Conclusion: Going Forward 187
Acknowledgments 193
Table of Cases 195
Index 197
Introduction
Th e Sacrament of the Software License
software, based as it is on logic, seems far removed from faith. But
nearly everyone in the world who uses software must first practice a quasi-
religious rite. Just as the churchgoer affirms a prayer or blessing by ritualisti-
cally uttering the word “amen,” the computer user, when installing software,
affirms a legal sacrament—known as the software license—by ritualistically
clicking the word “agree.” The words “amen” and “agree” are both affirmations
of assent, and in both cases, there is only one permissible answer consistent
with continuing to participate. You can say “amen,” but if you choose not to
affirm or ratify that which is stated in the liturgy, your only option is to leave
the church. Likewise, you can click “agree,” but if you choose not to affirm or
ratify that which is stated in the license, your only option is to exit the setup
program and refrain from using the product. Indeed, at church, you at least
have the temporary alternative of maintaining respectful silence. With soft-
ware, not even that possible compromise exists.
Of course, if you are in a church or a setup program, you most likely have
already made up your mind. You may not even be paying much attention to
the exact words you are being asked to affirm. Until the 1960s, the Catholic
mass was in Latin, which most people did not understand. The Latin mass is
now making a comeback, perhaps suggesting that some people actually
prefer not to know what the words mean. The typical software license is writ-
ten in a language, sometimes called “legalese,” that most people find equally
difficult to follow. Practicing a religious ritual does not require critical think-
ing about the ideas on which the ritual is based. Some might even say the
two are antithetical. Similarly, assenting to a software license does not require
reading the text. Perhaps for these reasons, worshippers routinely say “amen,”
and software users routinely click “agree,” without too many questions being
asked.
A software user who does read the license, like a Christian who actually
reads the Bible and finds out how many innocent people get killed, may be in
ix