Software: Open Content Licenses

Every day busy lawyers are clicking the buttons to download software. The buttons often say "I agree with the terms of this license agreement" or simply "I agree". Is anyone reading this stuff? I certainly am not, and I'm pretty much in the field -- litigating things like forum selection, class actions, and certainly wanting to buy things that carry a warranty of merchantability. These license agreements are both onerous and odorous: as lawyers we will be arguing that they are "contracts of adhesion" and should be disregarded. Chicago school lawyers would enforce shrink wrap licenses placed on rotten sides of beef. As you can tell, Small Firm Life is generally on the Ralph Nader side of things when it comes to consumer protection.

But there's a whole group of people that have been worried about the bigger picture. "Locking down" culture is their stated concern. Academics, politicians, industry lobbyists, and copyright philosophers all have different points of view as to how much control over modifying written works a copyright owner should have. And since software counts as a written work under US copyright law, modifications to software are a major point of contention.

Licenses are contracts governing the use of software and other copyrighted works. Generally, a content owner like Microsoft asserts full copyright in its work and leverages every aspect of that copyright, including the right to stop others from modifying its software ("creating a derivative work").

Open Content Licenses are licenses to use software that allow you to modify the software, make a product, and sell the product (the new software) subject to certain conditions. In other words, the copyright owner is asserting less than all of its rights. But as a cond a ition of using the software in modifying it, you have to agree to permit others to modify the software and to sell it. The idea is that if you are a young and hungry software developer, you will take "open source" software for free, develop a great product based on it, and both the underlying software and the new product will both find a bigger commercial market. For a good explanation of what's going on, check out Lawrence Liang's Guide to Open Content Licenses. It's free, of course. Also known as the "open source movement" this is becoming big business.