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A Software License That's Libre But Not Gratis?

Posted by kdawson on from the give-the-customer-what-he-wants dept.

duncan bayne writes "My company is developing some software using Ruby. It's proprietary software — decidedly not free-as-in-beer — but I don't want to tie my customers down with the usual prohibitions on reverse engineering, modification, etc. After all, they're licensing the product from us, so I think they should be able to use it as they see fit. Does anyone know of an existing license that could be used in this case? Something that gives the customer the freedom to modify the product as they want, but prohibits them from creating derivative works, or redistributing it in any fashion?"

21 of 246 comments (clear)

  1. No license necessary by morbiuswilters · · Score: 3, Informative

    IANAL, but if you are not imposing a EULA, you shouldn't need any kind of license. End-user licenses restrict what can be done with the copy of the software that is owned. Licenses like the GPL restrict what can be done when redistributing the software, but impose nothing on the end-users. If you are not wanting to permit your end-users to redistribute, simple copyright is enough to protect your rights without the need for an additional license. If the software is not being redistributed and you aren't requiring a EULA, then the end-users are free to modify the software as they see fit (or do anything with it, except redistribute) under existing copyright law. So it seems copyright law as-is protects you from redistribution and permits your users the ability to modify the software, without the need of any license.

    --
    I have come here to chew memory and kick ass... and malloc() is returning a null pointer.
    1. Re:No license necessary by gnick · · Score: 3, Informative

      Officially I think you're right. I deal with several vendors who license their stuff to us. We are often trying to work beyond what their out-of-the-box COTS customers want, so we often ask for a little bit of flexibility (APIs for developing our own aps - nothing fancy). They usually ask for a NDA, which may be a good idea in this case too, but nothing fancy.

      IANAL.

      --
      He's getting rather old, but he's a good mouse.
    2. Re:No license necessary by belmolis · · Score: 4, Informative

      This isn't really accurate. Although it is true that copyright law appears to prohibit the mere creation of a derivative work whether or not it is distributed, in fact some kinds of derivative work are not considered infringing so long as they are not published. If your interpretation were correct, annotating your own copy of a copyrighted book would constitute copyright infringement, which is not the case. You are perfectly free to annotate your books - you are not free to publish your own annotated edition of someone else's book. Similarly, it is infringing to publish a translation of a copyrighted work, but you may make your own translation and keep it for your own use.

    3. Re:No license necessary by scientus · · Score: 3, Informative

      thats specifically not what the poster wants, the creator wants to ensure getting paid, therefore the licence within firefox and truecrypt that permits copying (under certain restrictions) is not acceptable in this case.

      Also trademark stuff is valid for all software or anything even without copyright law even if things are in the public domain. Firefox etc all do more which is to copyleft it, making sure that people have to let each next user also view the original source, AND the contributions that any other developer makes, if they distrobute it.

    4. Re:No license necessary by Cyberax · · Score: 1, Informative

      WRONG!!!

      You are free to create a derivative work of copyrighted material. However, you are NOT free to distribute the end result of your work.

      If you keep modifications in-house then you're OK.

    5. Re:No license necessary by grantek · · Score: 2, Informative

      Depends who your customers are - most companies I've seen are scared shitless of using anything that doesn't have a brand name.

      The only way you can "ensure getting paid" is by not giving the client any freedom (or source) at all - the whole point of the open business models is that the customer can pick up your code and go pay someone else to support it, and that's ironically why you can charge a premium.

      Really, this "licensed codebase" is something different, and it's done all the time (like licensing a game engine to create your own game), all you need is a suitable NDA to keep anyone leaking the code to the public.

    6. Re:No license necessary by RichardJenkins · · Score: 2, Informative

      A machine like your Chevy is not copyrighted. The design documents are, but not the device itself.

    7. Re:No license necessary by The+Snowman · · Score: 4, Informative

      Not only is specialized software with restricted access to the source, but the person selling the software needs to have an actual contract in place, not rely on copyright law. My company does this: we develop highly specialized software, and our customers have the option of either using it in binary form, or having access to the source so they can customize it on their own (this costs more). Either way we have contracts in place written by our corporate lawyers that basically say "whatever you do, you are not allowed to sell it, redistribute it, etc." and the contract is specific to that business relationship. It names the two companies and the specific terms of the sale that is occurring, and the terms of the contract.

      Relying on copyright law would likely not work very well in this case, as it is ambiguous enough that to this day people are arguing about it in court.

      --
      24 beers in a case, 24 hours in a day. Coincidence? I think not!
    8. Re:No license necessary by mdmkolbe · · Score: 2, Informative

      The way I understand it is that the idea of "licensing out" software instead of just selling it under existing contract of sale law is that you're granted a license to do all that copying...

      16 USC 117 gives you the right to make any copies that are essential to the utilization of the program. No extra license is necessary.

    9. Re:No license necessary by im_thatoneguy · · Score: 2, Informative

      A good specific example of this is Apple's Shake compositor.

      For $10,000 you get access to unlimited licenses and the source code. But you're bound by an NDA and contract to not release any code modifications or even publicly state what modifications have been made.

      You'll read interviews where a VFX supervisor will say. "We used a proprietary 64bit compositor to do the IMAX work." What they're trying to say is. "We recompiled shake for 64bit but we aren't allowed to name the application due to NDA."

      If the OP wants to read what such a contract would look like I would just reference the Shake source code license.

  2. slashdot legal advice? by drDugan · · Score: 5, Informative

    um, like, hire a real lawyer. really, dude.

    1. Re:slashdot legal advice? by rleibman · · Score: 2, Informative

      Dude... you absolutely rock, I love my duet and will be buying a boom soon. A very happy customer

    2. Re:slashdot legal advice? by Taxman415a · · Score: 2, Informative

      There is no reason the licence needs to be in 'legalese' instead of plain english. Just be careful that there are no loopholes in interpretation.

      That's what legalese is: removing the loopholes in interpretation from plain English when it is interpreted by the law. Well that and an agreed upon lexicon that the courts and other lawyers have agreed on.

    3. Re:slashdot legal advice? by TheoMurpse · · Score: 2, Informative

      I was going to post the same thing, but instead I'm just going to say that, just for once, Slashdot should trust the AC poster's content. What he said is very true.

      In the IP arena, I'm solely interested in copyright practice, but I still couldn't get more than a handful of interviews with IP firms. The interviews were all basically over once they found out I had the one natural science degree that didn't qualify me to sit for the patent bar (abstract math).

      To even take the patent bar, you have to have a degree in a certain science or engineering field or have a substantial number of hours in a particular field (it's like 28 hours of physics, for example, and maybe 32 of chemistry as an alternative). The only exception to this rule is basically if you're on the level of Stephen Hawking or Albert Einstein, you can sit for the patent bar. I've talked with several patent attorneys, and not a single one has ever heard of a person being granted this exception by the PTO.

      Two of the top IP firms, Fish & Richardson and Knobbe (pronounced like Obi-Wan) both have gobs and gobs of Ph.D.-level scientists licensed by the PTO who also have law degrees.

      What AC said is true: the IP law field is staffed by more brainpower than you can possibly imagine. My friend was a science Ph.D. candidate (leaving information out to protect his identity in case the firm is reading) working on his dissertation before dropping out to go to law school. He's extremely brilliant. He went to an interview with Knobbe in Orange County and he said that they'd "open a door" and there would be like 15 bio Ph.D.-holding patent attorneys in a meeting behind the door. Then they'd go to another room, and there were 20 chem Ph.D.-holding attorneys in another meeting.

      I'm not trying to shit on your dreams. Just be aware that there isn't a lack of IP attorneys unless you're looking at some small field like in the realm of software licenses. One professor I know told me there are only about five good software licenses attorneys in the US. The rest are all "dumbasses" according to him. But I really hate classifying software licenses as an IP field.

      In any case, good luck, man. You're going to need it.

  3. this sounds like "Shared Source" by Anonymous Coward · · Score: 5, Informative

    which was the name of Microsoft's family of "not quite open source" licenses a few years back. Several products allowed you to examine the source code but do little else. I don't think they even allowed you to modify and recompile it in those days, but they've since replaced it (IIRC) with the "Microsoft Permissive License" which might be less restrictive.

    One product I remember was Rotor, a sample implementation of the .Net Common Language Runtime (similar to Mono but not as comprehensive). Another was the WTL Win32 GUI framework, which was an alternative to MFC based on ATL (Active Template Library).

    Slashdot was even more heavily anti-MS a few years ago and there used to be withering sarcasm at any mention of "Shared Source"... not so sure about today.

  4. Wait, what? by Timothy+Brownawell · · Score: 4, Informative

    gives the customer the freedom to modify the product as they want, but prohibits them from creating derivative works

    Modifying the product is creating a derivative work.

    My company is developing some software using Ruby. It's proprietary software â" decidedly not free-as-in-beer â" but I don't want to tie my customers down with the usual prohibitions on reverse engineering, modification, etc. After all, they're licensing the product from us, so I think they should be able to use it as they see fit.

    Look into selling them a copy of your software, instead of a license to use a copy of your software. US copyright law does permit people who actually own a copy of software to make certain kinds of modifications (don't recall what exactly), make the needed copies to actually use it (disk -> ram, etc), and such.

  5. Re:They're paying for it but can't give it away??? by pavon · · Score: 2, Informative

    It is unlikely that the person licensing the software is their sole customer, or that they paid for all or even a majority of the software development. When you are a small company who has any interest in building some "equity" from the work you get, you will be constantly be operating in a mode that is neither simply selling shrink-wrapped software or being paid to write software as work-for-hire but a mix of the two. I've never been directly involved in this sort of work, but from what I've seen on the outside, the terms and rights appear to be handled more through contracts than licenses.

  6. You are looking for a non-libre license. by pthisis · · Score: 3, Informative

    Something that gives the customer the freedom to modify the product as they want, but prohibits them from creating derivative works, or redistributing it in any fashion?"

    This question shows a total lack of understanding for what "libre" software is.

    A license along those lines would not be "libre but not gratis". Being freely redistributable and allowing derived works are core parts of "libre" software.

    All the common definitions of "libre" software (OSF, DFSG, etc) include statements like:

    "Free Redistribution

    The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale."

    and:

    "The license must allow modifications and derived works"

    --
    rage, rage against the dying of the light
  7. To clarify ... by duncan+bayne · · Score: 2, Informative

    When I wrote:

    but prohibits them from creating derivative works, or redistributing it in any fashion?"

    I meant to imply the redistribution of derivative works there.

    Obviously, modifying the software in-house counts as a derivative work, and I'm okay with that - just not with the idea that customers would then onsell or give away the modified product to other potential customers.

  8. Re:The customers already HAS the freedom to modify by BeaverCleaver · · Score: 2, Informative

    I hate replying to car analogies, but here goes:

    You can buy a car and do whatever you want with it, but this will void the warranty and the manufacturer will not support you if it breaks down.

    You can sell the car, but NO WAY are you allowed to copy the car and sell those copies. Say if you own a car factory, you're not allowed to buy one Ford F100, then reverse-engineer it and sell identical copies as Ford F100s. Nor are you allowed to change, say, the colour of the upholstery, then sell the whole thing as your own work. No way. It's not just the electronic media that has these restrictions.

    --
    sustainable living
  9. Radiator has that kind of licence by Lorens · · Score: 2, Informative

    Radiator (a commercial Radius server) is provided with source code. Their license is at http://www.open.com.au/license.html. I just read it (again), and the legalese seems rather complete, you just have to remove the sentence saying that derivative works are not permitted, and replace it with something saying that the Licensee is permitted to modify the work for his own use as he sees fit but that any such modifications are to be considered part of the licensed work and may not be distributed to anyone except back to the Licensor . . . but since your company's money is involved you should go ask your local copyright lawyer what he thinks :-0