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

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

by Douglas E. Phillips
     
 

ISBN-10: 0195341872

ISBN-13: 9780195341874

Pub. Date: 06/01/2009

Publisher: Oxford University Press, USA

Millions of computer users regularly bind themselves to software license terms with the click of a mouse, usually without reading anything but the word "agree." Licenses for software as diverse as Microsoft Windows and Linux, and terms of use for websites such as Facebook, are all subject not only to intellectual property and commercial law, but also to

Overview

Millions of computer users regularly bind themselves to software license terms with the click of a mouse, usually without reading anything but the word "agree." Licenses for software as diverse as Microsoft Windows and Linux, and terms of use for websites such as Facebook, are all subject not only to intellectual property and commercial law, but also to the private law of the license, which comes in many forms, each with its advocates. Microsoft, for example, maintains that its proprietary model gives users the rights they need while creating the incentives that have made the United States the global software leader, while Richard Stallman - creator of the GNU General Public License and author of a number of free software programs - asserts that proprietary licensing enables software companies to "hoard" software they should be sharing.

In The Software License Unveiled, Douglas Phillips looks at both of these extremes and questions how these proliferating but largely unread license terms affect access to software, one of the economy's most valuable resources. While highlighting the obvious divergences, he makes the more illuminating case that most current models - spanning the spectrum from proprietary to free - have one key feature in common: to an increasing extent, each license model extends, modifies, or displaces public law that would otherwise apply. Unlike books that advocate one form of licensing or another, this one reframes the debate to propose that going forward a key challenge for lawyers, scholars, policymakers, and the public is to consider whether "legislation by license" should be the means for controlling software access.

Product Details

ISBN-13:
9780195341874
Publisher:
Oxford University Press, USA
Publication date:
06/01/2009
Pages:
232
Product dimensions:
6.10(w) x 9.40(h) x 0.90(d)

Related Subjects

Table of Contents

Introduction: The Sacrament of the Software License ix

Part I The 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 That's Not All 48

2 The 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: The Reality of the EULA 75

3.1 Software License Readability 77

3.2 Software License Efficiency 81

3.3 Effects 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

Part II The 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 Than 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 The GPL, the Public Domain, and the Web 173

6.1 Proprietary Capture: The X Window "Paradigm" 174

6.2 Proprietary Capture and GPLv3 177

6.3 CERN Web Software andMosaic 178

6.4 Effects 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

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