What is the difference between software licensing and copyright

Question

Over the past months I see that questions regarding copyright on software are receiving close votes, with a custom close reason along the lines of

This question appears to be off-topic because it is about copyright which is a legal matter. Legal questions are off topic here as software developers are not qualified to give legal advice.
_{Quote taken from here, which is actually a bad example, as the question is really about a legal issue. It was just the most recent question where copyright was cited as close reason.}

On the other hand, the "What can I ask about" page (https://softwareengineering.stackexchange.com/help/on-topic) explicitly lists "software licensing" as being on-topic.

To my knowledge, software licensing is the application of a copyright license to a software produce, so that leads me to the question why such questions are officially sanctioned on the one hand and they receive off-topic close votes on the other hand.

Answer 1

Copyright is ownership of a creation. Copyright gives you the ability to decide what others can do with your creation (if anything), including control over creating derivative works.

A license is a set of permissions to use a creation, and is granted by the copyright owner. A license can address creating derivative works, modifying the original creation, and distribution rights of the original creation or derivations.

One of my frequent openings to answers in this domain is Copyright != License

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Copyright questions are problematic on the site. Copyright law varies by country, and can sometimes vary even within individual jurisdictions of the country. Copyright law can frequently be affected by employment law.

California, USA is a notable example of having differing particulars than other states. And how each country chooses to follow the Berne convention is another matter.

If a domain (such as Copyright) is difficult for attorneys to figure out and can be highly specific to jurisdiction, then the question isn't a good fit for Programmers.

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License questions are generally on-topic for the site. Some of the more well known open-source licenses are fairly clear in how to apply them for mainstream usages. And in some cases like the GPL, there's a well established FAQ covering a range of scenarios. Others like BSD and MIT are pretty clear cut.

But it's easy to get into corner cases where consulting with an attorney is required. So you'll still see some license related questions closed.

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I'm certainly biased in this case, but I prefer the suggested phrasing in this answer for closing legal questions.

This question appears to be off-topic because it is about legal matters outside of the community's experience and is best answered by an attorney with expertise in your jurisdiction.

I think it does a good job at explaining why some licensing & copyright questions are allowed, but others are not. We're not here to be a team of legal experts - we're programmers. But there are some subjects that we've collectively encountered and can answer.

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Finally, I would be remiss if I didn't point out that some members of the community dislike all legal related questions. The fundamental premise is that we potentially create liability for the site by answering those questions and that things are so hopelessly muddled that only attorneys should address those types of questions. Currently, that's the minority view but we shouldn't be outright dismissive of the concerns.

Answer 2

(I am not a lawyer. Do not take any of the following as legal advice. It is, however, my understanding as someone who is more than a little bit familiar with certain aspects of copyright law... but could still be completely wrong)

First thing to realize with the question https://softwareengineering.stackexchange.com/questions/230592/would-copyright-drop-if-i-re-do-it-from-scratch-in-different-language (from my reading of it) is that it is neither a licensing nor a copyright question in many situations - it is a contract issue.

For all of the major companies that I worked at, there was a specific clause in the contract that if I wrote software that was directly applicable to my job, even in my off hours on my own equipment, that software would be owned by the company.

For example, at my previous employer I worked on a point of sales system. If I wrote something that was point of sales use (a custom dsl for doing receipts, or rules engine for determining the price of something based on discounts and coupons and sales, etc...) that creation would have been owned by my employer.

I haven't seen similar provisions in my current employer's contract, so this isn't universal, but I'm more inclined to believe that my current employer is the exception rather than the rule.

To that extent:

If on my off hour, I write with a language C, from scratch a program which have a similar goal, but target user base B, and is open source, is it unethical or breaking trade secret/non compete/other?

is likely an answer that can only be determined by "read your contract" and "talk to a lawyer".

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Lets assume that this isn't a contract issue.

As described, it could be a copyright issue instead. In this case it is a question of is any of the works in the 'from scratch program' a derivative work of the program written while on the clock. This can only be answered by a lawyer - its not a licensing issue.

The question also asks about trade secret which is completely the domain of lawyers and I couldn't even begin to comment on that - what a company considers a trade secret or not.

There is also the 'non-compete' question in the question. This is likewise a question that is something that varies from jurisdiction to jurisdiction (enforceable in some, not others, and funky rules in yet others). This is also completely in the domain of lawyers to determine what competes and what doesn't.

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In total, the question appears to be nearly all legal questions other than licensing. I don't see any license question in there. The copyright part isn't necessarily correct, but that it is a legal question that programmers don't have the expert knowledge of is absolutely correct.

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Its a fine line between the two topics in some cases. However, most of the closed questions that I've poked at that that have received closed votes are either:

• questions about legality
  Is it legal to remove the license information from a GPL compatible license when using it in GPL software?
• questions about non-license issues (contracts)
  I am working for XYZ who is using in house modified GPL software. Can I submit those changes back to the main fork?
• "find a license for me" I am looking for an open source license that prevents military or commercial use. This one is a resource request, despite it being about licensing.

This set of questions makes up the majority of the closed questions relating to licensing. Nearly all of the copyright questions fall into that first group.

The thing that would help the most is to identify a licensing question that was closed with a reason pertaining to copyright that is actually a licensing question that should be open based on the guidelines.

Answer 3

Copyright is what you have when you create something: the right to control how that creative work is used and distributed.

A license is the agreement you make (and the conditions you specify) which allows others to use your creative work, and/or distribute your creative work to others.

Answer 4

Copyright is an attempt control distribution, but has a lot of problems because its origins are in enacting press restrictions, which means we have to pretend that programs are literature. Licensing is an attempt to control the actions of users in the context of use of a product, but suffers from some basic conflicts with constitutional systems which typically maintain sweeping prohibitions against unenforceable laws.

I'll digress a tad and run through why copyright is increasingly insufficient and how licensing appeared a way out early on. I feel this is relevant to a complete answer because it is the changing nature of the meaning and intent of these terms that is most important in determining what they mean at any point in time.

"Copyright" pretends that programs are literature, not math. It enables a system of selective enforcement over the right to copy a product. Originally this meant printed materials such as pamphlets and especially books, and the idea was that print presses were heavy-duty enough operations that a rule over copying was enforceable (in the pre-press days of manual transcription "copyright" was an entirely arbitrary concept, typically compounded with a royal or religious intent for censure). Today the term most often refers to digitized content, skipping straight over the media layer of existence to which the concept was originally intended. From the 1960's to the early 1990's the term "copyright" was generally applied against source with the understanding that customers (who were typically huge organizations) were going to compile their products from source and would modify the code for their own benefit. In this context the number of originals was quite low and pinpointing the source of what was essentially a breach of customer faith was trivial. In the 1990's a new interpretation of the term suddenly meant that literary copyright should cover all forms of a program, even binary executable forms which are demonstrably not articles of literature. This new meaning was additionally burdened by the implicit (but entirely unsupported) idea that it was also illegal for a user to decompile, examine functional aspects of, or otherwise use a program in a manner its author did not intend. The fact that everything beyond the act of physical reproduction has no original reference in traditional copyright law, plus the fact that lawyers and judges were becoming aware that copying is a basic function of all computing systems, necessary for the execution of any program, placed user restriction arguments into the realm of proving intent (not so easy, depending on the composition of the opposing legal teams arguing) and firmly out of the realm of factual argument.

"License" pretends that a maker of some manner of product can have any practically enforceable say over how a person uses a product he has bought. It seems entirely reasonable if product licenses were a natural concept that baseball bats and kitchen knives would come with an EULA attached that prohibited their use in murderous crimes -- but they don't. On the other hand, "home" and "academic" versions of some common operating system and office productivity products come with EULAs which prohibit uses that are not "personal" or "academic" in nature to augment the obvious holes in the legal argument for contractually restricting product use cases via implicit contract between the producer and the user ("implicit" in this case meaning "a contract you did not unambiguously and knowingly agree to" by doing something like signing a paper or clicking "I agree" somewhere).

The one you didn't mention is patents, which face similar problems, as program execution can be expressed clearly in terms of equivalent calculi or algebras -- and this conflicts with the basic rule that math is not patentable.

Software is written but not literature, its a product but composed of purely applied math. And it is complex/non-deterministic enough it can reasonably be referred to as art in many cases. Its simply something for which we do not yet have a clear legal concept of, and therefore the terms above which are used to try and protect such works will eternally have shifting definitions and implications. Its the constantly shifting nature of the meaning and intent of these terms in the context of software that I am hoping to express with the verbose explanation above.