The Software License Unveiled: How Legislation by License Controls Software Access, Douglas E. Phillips, Oxford University Press, 2009.
xxi + 204 pages. Hardback. ISBN 978-0-19-534187-4.
This is a relatively short text, but well written and easy to digest. The argument which Phillips puts is one which should be of interest to those large numbers who are put off looking further into licensing of software by the ideological bullets which fly around between commercial firms such as Microsoft and the FOSS campaigners. The text is primarily US based and a reading for European audiences would need to take recent consumer contracting directives into account, but that should not diminish its interest.
Phillips first argument is that the software license has, since the ProCD decision of 1996, become the central facet of ownership and usage of software. The ProCD court took the view that when a consumer accepted a shrink-wrap license that that license contract took precedence and any other legal rights were lost to the consumer - for example, copyright and its concept of 'fair use'. The End User License Agreement (EULA) thus became a kind of 'private law' which could oust any other legislative regime. Given that software producers can effectively set their own license terms, the advantages to the seller over against the consumer are obvious. This has developed into a situation where almost all software is now licensed - and while the user may believe that they 'own' a copy of the software, they do not. Copies of software, unlike books, are thus not sold to another user, instead the license is transferred to that other user. For the software producer, the annoying exhaustion of rights (where they lose control of the product after first sale) is done away with.
Phillips argues that this has allowed private law to oust public law (and the policy context of that public law) and locates the consumer in a weak position vis a vis bargaining over the contract. He also suggests it leads to poorer quality software than might otherwise be produced.
Phillips does not simply stop at critically assessing the commercial supplier of software. He then moves onto carry out exactly the same critical assessment of 'open source' software, a form of licensing which is supposed to be more 'free'. His analysis is that there are considerable problems with these licenses - such as GPL - which effectively suit some developers (rather than the user of software) but which do little to provide an economic framework in which software development can be properly encouraged. As Phillips notes, most development of 'free software' is subsidised either with or without the permission of employers.
Finally, he uses as an example Tim Berners-Lee's decision not to use the GPL but instead to donate the internet protocols to the public domain. Phillips argues that the take-up of these protocols as the world-wide standard would have been unlikely if the GPL had been applied, given that it prioritised the needs of the original designer rather than those who came and developed the protocols and software upon that.
Phillips' text, is in my reading, a paean to a more traditional balancing of private and public rights, something which licensing tries to undercut (and succeeds in so doing). Of course judges can sometimes be pretty rubbish at balancing private rights against the public interest, (despite their conceit that it is what they do best) and a prominent example of such a poor balancing might be the ProCD decision.