[linux-elitists] A backward look at proprietary licences

Don Marti dmarti@zgp.org
Sun Jan 20 16:22:02 PST 2002


begin Rick Moen quotation of Fri, Oct 19, 2001 at 08:39:31PM -0700:

> | don't know why I started, but I've been collecting the actual licence
> terms of the more common bits of proprietary Linux software I come
> across.  It occurs to me, among other things, that it's useful to be
> able to point to these bizarre things, to get across some of the key
> points about why open source is important.

And to finally get people to stop asking the question, "Should
proprietary software be _illegal_?"

You can't answer that question in a meaningful way because it
doesn't describe what kind of law would be passed to enforce the ban.
A mandatory government CVS server?  Most people would probably be
against that.

But what happens if you put the question in a more constructive
form that maps better to what the law can and can't say about
software licenses?

"Should any and all restrictions be enforceable in a software
license?"

Unless you're an absolute adolescent technolibertarian wanker,
you don't believe in a person's absolute right to bind himself
or herself to whatever contract he or she wants.  The answer to
the question is no.  Some contract terms should be enforceable,
others should not be.

Should a contract be able to bind a user to silence when discussing
software?  Bad for other users who need to make a software decision;
bad for the economy.

Should a contract be able to prevent someone from reverse engineering
software in order to create compatibile software?  Bad antitrust
policy.

Should a contract that covers a copyrighted work be able to further
restrict personal, not-for-sale copying, or resale?  It's been
tried for books and thrown out on the grounds that copyright law
is a perfectly good balance already.

Since software sits on various places in the continuous unbroken
shading between "device" and "free expression" it's fruitless
to try to assert that copyright law doesn't apply to software.
So "proprietary" software in the sense of "subject to copyright
law" will probably be with us as long as copyright law is.
But proprietary software in the sense of "restricted by a bad
contract" -- that probably should be illegal.

-- 
Don Marti                                          
http://zgp.org/~dmarti       Join the Distributed Unisys Google Experiment.
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KG6INA                                                          everywhere. 



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