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The Software License Unveiled: How Legislation
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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.
- Sales Rank: #3645646 in Books
- Published on: 2009-06-01
- Original language: English
- Number of items: 1
- Dimensions: 6.20" h x .90" w x 9.20" l, 1.05 pounds
- Binding: Hardcover
- 232 pages
Review
"This is a thorough tour of the software license. Phillips challenges conventional models and ideologies, and offers real-world examples and insights for anyone who has a stake in software distribution."
--Eric Schmidt,
Chairman of the Board and CEO, Google Inc.
"Douglas Phillips has provided us with a wide-ranging and thoughtful analysis of current problems with software licensing, and his proposed solution is clear and sensible."
--Jameson W. Doig,
Professor of Politics and Public Affairs Emeritus, Princeton University
"In Doug Phillips' skillful hands, the subject of software licensing comes alive. He has a lot of smart things to say about this novel but important legal issue -- and he says them well."
--Alan S. Blinder,
Gordon S. Rentschler Memorial Professor of Economics and Public Affairs, Princeton University
"If you're at all interested in privately made "laws", technology and its legal framework or the history of the software industry, you'll enjoy taking a gander at The Software License Unveiled."
--IPWhatsUp.com
"The Software License Unveiled is a well-written and illuminating book. Caselaw citations are listed in a Table of Cases, and the well-constructed index contains many cross-references. I recommend this book for all types of law libraries..."
--Bryan M. Carso, Coordinator of Reference & Instructional Services, Western Kentucky University Law Libraries, Bowling Green, KY, Legal Information Alert
"This book will persuade you to question the assumption that complex legislative software licenses are desirable or inevitable. Phillips writes about this technical subject with humor and ease, as someone who has been in the trenches representing software licensors and licensees for decades." -California Lawyer
"An enlightened point of view."-les Nouvelles
About the Author
Douglas E. Phillips is Vice President and General Counsel of Promontory Interfinancial Network, a company based in Arlington, Virginia, that provides technology-based services to financial institutions. He joined Promontory from the law firm of Covington & Burling in Washington, D.C., where over two decades he was involved with some of the most significant legal issues affecting software on behalf of a variety of clients, including both licensors and licensees and ranging from startup companies to large corporations.
Most helpful customer reviews
2 of 2 people found the following review helpful.
Phillips unwraps the EULA
By AmazonUserName
A thought-provoking tour through the thicket of licensing theory and practice. Phillips peels back the clickwrap and exposes the issues behind modern EULAs, GPL, open source, copyleft, etc. The text is both interesting and dense, and covers the field in a reader-friendly way. For anyone interested in software licensing, this should be required reading. Only problem -- after your done you might never click "Agree" again.
4 of 5 people found the following review helpful.
Cutting Edge Thinking
By mda77
This book goes well beyond the shrill polemics that typically surround this subject. Indeed, it presents an "out of the box" alternative to the two traditional camps. And given the explosively increasing importance of intellectual property issues in our economy, it is a timely read. I enjoyed it a lot, despite the challenging content and emphasis on a rigorous conceptual framework that focuses economic, legal and social principles on the key issues. There is also a nice dose of historical perspective which injects not only a contextual element but also a wicked slice of humor. Neither side is spared! Enjoy...
2 of 3 people found the following review helpful.
Congress Should Read This Book But Won't; You Can
By John R. Sommer
This book is an interesting read for copyright lawyers as well as software professionals. Policymakers in Congress should read it too, but that doesn't seem likely. The Software License Unveiled was enjoyable because of the many interesting facts and analyses. That the book is concise (in marked contrast to most scholarly books) means it was a pleasure, rather than a drudge, to read.
The law about software copyright developed almost entirely during the life of most copyright lawyers. When I was still in college, I was typing programs on punch cards. Free "software" was limited to cards that would print out a "Snoopy" on the 18-inch wide paper we used. Much has happened since then.
The book discusses a seminal article by Bill Gates written in 1976 about hobbyists (and those were the persons using computers back then) who copied software without paying for it. One wonders how the computer industry would have developed if Bill Gates' father hadn't been a named partner at a major Seattle firm (one that I interviewed with but didn't receive an offer). One supposes that someone else would have filled the role of Microsoft.
Although we all know about the several versions of GPL (and if not, the book is a great introduction to the subject), I did not know about Richard Stallman, the inventor of "copyleft," as distinguished from "copyright." Although Stallman believes in no copyright protection, he "sold" the disks upon which the "free" software was recorded. Stallman felt this was not a violation of his principle that all software should be free--a distinction without a difference that even a lawyer can chuckle about. Beyond these interesting tidbits, the book provides a thoughtful analysis of the GPL and "copyleft." The book discusses the "viral" nature of GPL software, but omits a discussion of the vendors who have grown up in response: vendors who screen software for GPL contamination.
The EULAs or "shrink-wrap licenses," which we all take for granted as enforceable, were of uncertain validity until the ProCD case in only 1996. A number of interesting thoughts about the ridiculously one-sided nature of EULAs: what is there to limit EULAs? Software vendors could include language in the EULA that would allow the vendor to install adware and spyware on the users' computers without their knowledge or permission. What prevents the vendors from doing so? Certainly not any negotiations between most consumers and the vendors. What about a few sophisticated consumers (such as IT professionals in large corporations)? Or public interest groups (such as the Electronic Privacy Foundation) that shame the vendor into a more reasonable EULA?
From a policy perspective the larger question is whether all the important doctrines included within the Copyright Act are allowed to be superseded by EULAs: fair use, reverse engineering of uncopyrightable elements. The later point is dear to me since I worked on a major case involving the application of a license to the reverse engineering of unprotectable elements of a program. The decision was depublished by the California Supreme Court, but that battle has long been lost due to language included in most EULAs. Yet, for our society, does this make good policy?
A third approach, different than GPL and EULA, is open source. As we all know, SCO and the other UNIX service providers existing on servicing public domain software. A bit more attention to the various open source programs other than UNIX would have been interesting.
The book contains well-written and understandable explanation of some major economic analyses of software licensing: economic efficiency, information asymmetry, intangible property, the hypothetical extension of licensing to other goods, for example, what if hammers were licensed pursuant to a EULA instead of sold?
In summary, intellectual property attorneys, licensing attorneys and software professionals should all enjoy this book.
As a disclosure, I know the author, and despite that it was a pleasure to read and I recommend the book to my friends.
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