Licence-Free Software

Licence-free software is software that is copyrighted but which is not accompanied by a software licence.

Examples of licence-free software

The most well-known examples of licence-free software are various packages written by Daniel J. Bernstein (although other authors, such as William Baxter, have followed in his footsteps), notably qmail, djbdns, daemontools, and ucspi-tcp. These are all copyrighted and distributed by Bernstein. Bernstein writes on his page about software users' rights, "If you think you need a [licence] from the copyright holder, you've been bamboozled by Microsoft.".

Although they do not come with a "licence" document, it can be argued that qmail, djbdns, et al. are not entirely licence-free in a legal sense. On his various web pages giving information for distributors, Bernstein grants permission for users to redistribute the packages, in source code form, verbatim. This permission granted by the copyright holder can be construed as a copyright licence. However, there is significant and long standing dispute in the community as to its validity and weight, given the transient and wholly electronic nature of the licence document. (These same concerns have been expressed about the non-paper licences of shrink wrapped software, and for the same reasons. Ironically, given Bernstein's own opposition to software licences, arguments to support the validity of the Bernstein web pages as licences also strengthen the case for the validity of "click wrap" end-user licence agreements. Still, a difference remains in that Bernstein's license is purely permissive whereas most "click wrap" licenses attempt to forbid certain actions on the part of the user.)

What users can do with licence-free software

On his page about software users' rights Bernstein explains his belief that under the terms of copyright law itself software users are always allowed to modify software for their own personal use, regardless of licence agreements. He says "As long as you're not distributing the software, you have nothing to worry about.".

He also says that software users are allowed to back up, to compile, and to run the software that they possess.

He further says that "since it's not copyright infringement for you to apply a patch, it's also not copyright infringement for someone to give you a patch," noting the Galoob v. Nintendo case as precedent. Thus modified versions of licence-free software can legally be distributed in source code form in whatever way that the original can, by distributing a patch alongside it.

Difficulties with licence-free software

The FSF, for example, strongly encourages authors to employ copyright licences, specifically the GPL. Indeed, the difference between the FSF's philosophy and the licence-free software philosophy can be paraphrased:

Licence-free software: Copyright licences are bad because they interfere with your ability to use software. And you will be surprised how much copyright law, by itself, allows, without need for "licences". Avoid copyright licences.

FSF: Copyright licences are bad when they interfere with society's benefit from sharing software. But you can take advantage of the current copyright system to instead encourage such benefits by using our licence.

However, the disagreement is partially illusory; the licences advocated by such as the FSF do not interfere in the manner that the licence-free philosophy rejects. These licenses allow, with restrictions, certain actions that are disallowed by (many jurisdictions') copyright laws. No new restrictions are introduced; if a licence did attempt to restrict an action not prohibited by a copyright system, by Bernstein's argument those restrictions could be ignored. Bernstein's "non-licence" of verbatim retransmission of source code is in fact very similar in nature.

The philosophical disagreement still causes problems for Licence-Free Software, not least because the free software and open source philosophies are far stronger influences than the "licence-free" philosophy is, and thus hamper the spread of licence-free software. For example: qmail, djbdns, et al. do not meet the OSI's Open Source Definition or the FSF's Free Software Definition because compiled versions incorporating third-party modifications may not be redistributed. Common copyright law does not permit this without an explicit licence from the copyright holder. (Source code versions incorporating third-party modifications, such as netqmail, dqd, and Debian's qmail-src package, are of course permitted, but these require every user to have a compiler on their machine.) As a consequence of this, Bernstein's packages are not installed by, or even included in, some Linux distributions because they are thus classified under their rules as "non-free", and because modifications that the distributors would make to it are not distributable in pre-compiled form, but only in source form.

Another major difficulty with licence-free software is that base copyright law is not uniform, particularly with regard to computer programs. One purpose of "open source" and "free software" packages actually having software licences is the levelling of the playing field across jurisdictions. Bernstein's explanation of software users' rights is based upon United States copyright law. The copyright law of other countries, such as the United Kingdom, is subtly different with respect to computer programs, and more restrictive. The software licences of "open source" and "free software" packages explicitly waive the rights that statute law in some countries may reserve to copyright holders, which U.S. law does not.