Michael Musick
CSC 540
The Intellectual Property of Source Code
When purchasing and installing software there are a lot of users who feel that they now own that product, that they can do whatever they want with that software. This is a common misconception among a lot of people. They do not own the software, they have been granted a license to use the software, that is what they paid for. When installing software users are always presented with a wall of text and the option to accept or decline, this is the license they paid for, if they agree to the terms of it the installation continues, if the user declines the installation of the software is cancelled. This license is called the End User License Agreement (EULA), there are other licenses out there as well, these are Open Source Licenses and Creative Commons Licenses. If users are purchasing the right to use software or agreeing to these licenses in order to use the software the question comes up, who owns the software if not the user? This has been a difficult and controversial question to answer. There are two different groups that come into play when this question is asked, there is a group of people that all programs should be available to copy, study, and modify by anyone who wants to do so. Then there is the group that feels that companies and programmers invest a great deal of time and money into the development of software and that they should be able to get a return on their investment. There is also a lot of people who feel that software should be ownable, but "casual copying" of said programs by the owner's friends should be allowed, but there are claims that millions of dollars in sales are lost by this practice. Another problem that leads to companies losing millions of dollars per year is software piracy, illegally downloading and using and distributing software. Ownership can be a complex idea since there are several different aspects of software that can be owned, as well as three different types of ownership. There are copyrights, trade secrets, and patents. The following are different parts of a program that can be owned: the source code, the machine-language translation of the source code, the algorithm, and the look and feel of a program (commonly referred to as the Graphical User Interface (GUI)).
Software piracy is a problem that a lot of software companies deal with in many different ways. Some respond with lawsuits, others leave messages in their software stating that they are aware of the user using a pirated version of their software and strongly recommend they purchase it, and others take more creative approaches. One such approach was in a video game called "Game Dev Tycoon", a game in which the player creates a game development company and creates video games, if the player was playing a pirated version after a certain point in the game their company would start losing money due to people illegally downloading their games eventually forcing the company to go out of business leading to the player losing the game. This was a feature only present in pirated versions of the game that the developers personally uploaded to file sharing sites. When it comes to the more creative approaches that developers take to combat piracy, the most creative approaches seem to come from video game developers. A lot of video game developers will upload their games to file sharing sites with slight modifications made to their source code, sometimes this breaks certain features of the game leaving the players stuck in certain areas, others immediately break the game with in the first minutes of game play, one game leaves the game playable up until the end of the 12 hour game and then freezes, upon restarting the game, players of this pirated version will find that all of their save data has been deleted. The most malicious of these was a developer that loaded pirated version of their games with a Trojan virus that passed itself off as the game installer, it would then ask the user to fill out a survey and eventually take screenshots of the user's desktop and post the pictures online. While this is certainly a creative approach there are companies out there that take more traditional approaches to combating piracy. Microsoft has stated that a majority of their piracy cases get started due to tips from its customers. According to an article found on cnet.com 450,000 customers have reported pirated software to Microsoft since 2005. This same article states that Microsoft files more URL takedown requests to Google than any other company in the world. Between July 2011 and May 2012 Microsoft has asked Google to remove over 2 million URLs. All of this shows how big the piracy problem is. Companies take these measure to protect their intellectual property, but the question still remains, which parts of their intellectual property can actually be protected? What parts of the software to these developers own? Answers can be found in the previously mentioned types of ownership that exists in the world of software development, the copyrights, patents, and trade secrets.
Copyrights, patents, and trade secrets are options available to developers in order for them to legally protect their ideas and software. While all three are options, only two of them offer any real protection, trade secrets offer next to nothing in the form of legal protection but can in theory last forever while the other two approaches do come with strings attached. While trade secrets are not subject to infringement protection much like anything protected with patents or copyrights, they are on the other hand subjected to theft protection. A trade secret lasts for as long as the owner uses reasonable efforts to keep it a secret and others do not independently create it or discover it on their own. The legal status of a trade secret as a protectable intellectual property will remain as long as the owner can prove that the secret was not generally known and reasonable steps were taken to keep said secret a secret. With all of this being stated, the only legal protection offered by trade secrets is if the secret is somehow stolen. Copyrights offer a bit more legal protection but what they protect is very limited in comparison to a patent. The length of a copyright is somewhat large but still does come with an expiration date, generally speaking the duration of a copyright is the author's life plus fifty years, this is not a universal duration though. In a situation where an employee of a company develops software for the company the software is under copyright protection laws for seventy five years from the date that the software was published. What copyright laws actually protects is very specific, in the case of software the protections cover the source code of the software, the object code (machine language), and anything that is considered a certain or unique element of the user interface. Patents are a very strong way to go about protecting ideas and/or software. Patents are a twenty year monopoly on the right to make, use, and sell an invention that qualifies for a patent. That being said patents are very hard to obtain. To get a patent in the United States an application must be made to the Patent Office and show that the invention is new, useful, and "nonobvious". An invention is declared nonobvious if it is more than a trivial, obvious next step in the advance of technology. Even though patents are tough to obtain they are very powerful tools, in the software development world a patent would allow a developer exclusive rights to a new type or form of software for 20 years before anyone else would be able to duplicate it. Even with all of these protections available developers still include licenses that users must agree to in order to use their software, it is another level of protection that software developers use to protect their intellectual property. This even includes open source developers that wish to distribute their software freely. This type of license is different from a EULA, it is called an open source license.
What a license specifically does is grant specific permissions for other people to use the work of the owner of said license. Open source licenses allow for others to contribute to a project without having to receive special permissions, it also protects the creator of the project ensuring that they get credit for their work, it also prevents others from stealing someone's work and claiming it as their own. There is a large collection of open source licenses available to developers, the most commonly used one is the GNU General Public License, there is the BSD License, MIT License, Apache License, and Creative Commons. Creative Commons licenses are not quite open source licenses but they are commonly used for design projects. Each of these licenses come with their own specific set of rules that will allow developers to get credit for their work but still distribute their software freely and keep it protected. The license agreement that usually comes with software that is not considered free or open source is called the End User License Agreement or EULA. There are multiple sections of a EULA, the grant of license, this section tells the user that they are to not share, sell, or distribute the software, it also informs the user of whether or not they are allowed to create a backup of the software. Then there is the licensing restrictions, this outlines what the user can or can't do with the software, a user needs to understand that they cannot do anything that is not outline with in this section. Next comes the ownership section, this basically states to the user that they in no way own the software and that the developer of the software is granting a license for the user to use said software. Next comes the audit rights section, this allows the software developer to audit the user at any time with a review of their entire software estate for any installs or use of their software, this basically means that the company is able to take a look at all of your software to see when and where their software has been installed and what you have used it for. Next comes termination, this states that if the user is found to be in violation of the EULA the owner of the license is allowed to terminate the right of use of the software. Then comes the warranty, this one is the real kick in the teeth for people who decide to read this far into a EULA, this basically states that the software is provided 'as is' and that there is no real warranty, what you see is what you get. This does not cover broken or defective software. The next two and final two sections are actually related, they are damages and limitation of liability. Damages states that the vendor takes no responsibility for any damages that the user may encounter when using the software. Limitation of liability allows the vendor to factor into the cost of the license any potential damages they may have to pay out. This is basically a protection for the vendors and developers of the software in the event of defective software that may cause damages to a machine, this buts a cap on the amount that a company would have to pay out in damages. This concludes the laundry list of sections contained within a EULA. That being said the average user will never read them, they are very lengthy and contain a lot of words and jargon that average users won't understand.
With all of this being said, the answer to the original question of "who does the software belong to if not the user?" That answer can be oversimplified down to one source regardless of whether you are an open source developer who distributes their software for free or part of a company that sells off their software as stated earlier. Software belongs to those who created it, through the use of copyright laws, patents, trade secrets, and different forms of licenses these developers are just trying to protect their ideas and hard work. They are trying to stop people from steal their ideas and prevent people from pirating stuff that they worked very hard on. Even the most buggy of software that would be considered terrible like Windows Vista, had a lot of people who worked very hard to develop. All of these laws and rules and licenses are in place to protect that hard work.
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