NTLK Software Licences

From: Michael Manthey (Michael_Manthey@magicvillage.de)
Date: Sat Jul 15 2000 - 10:29:27 CDT

I know the subject has been thouroughly discussed on this forum before,
and I appreciate Ed's and Frank's opinions. Behind the debate, I see a
more fundamental question, though, one concerning the future development
of our legal systems and of our societies.
We probably all of us agree that we are dealing with an issue of ownership
(intellectual property) and that there is the additional question, how the
interests of the purchaser of a product relate to the original owner's
interests. What makes this so complicated is the fact that a purchaser
only buys a license, not the original software as such.
If you buy a book, to use an analogy, you acquire a product that you will
not gain intellectual property of through the purchase; it rather is a
copy of the original idea as put down by the author. The original
manuscript may have been published in thousands or millions of copies, all
of which will be sold. The right of ownership remains with the publisher
or the author and the revenue from marketing the book will go to both or
either one of them based on a contract which specifies their respective
shares. Whoever buys a copy can do with it, whatever he likes, except for
republishing it or trying to sell it as his or her intellectual property.
I.e., you cannot start the cycle of publication afresh. Otherwise you are
free to do with the book as you like: put it on a shelf, read it now or in
ten years, give it away to a friend, give it away as a present, copy it
for your private use, burn it, distort it, analyze it, quote it and so on.
Interestingly enough, you don't buy the book in a sealed wrapper
containing a legal agreement on what your rights are. The nature of
contracts that demand your acceptance prior to your even being able to
read them is highly problematic. A contract in principle is an agreement
that can be altered by mutual consent and what is missing here is the
possibility of knowing about the clauses of the agreement in advance.
Another issue is that the same type of contract is offered not just to you
but to every potential customer. Contracts ot this nature underlie special
legal norms at least in Germany (I know next to nothing about jurisdiction
in England or the States, whereas the differences should not be so great
in Europe, as there is a common source to all continental legal systems).
Even if you lost your book and the finder was unable to restore it to its
rightful owner, he would have the same right to do with that copy what you
did as the original owner. Or if you bought a legal compendium, no one
would object to its being used by several attorneys in the same office.
A problem with software is, however, that it is also a complementary good
(this is an economic definition). The use of software is dependent on the
use of hardware. (Analogies are gas and cars, or tobacco and pipe.) In
addition, although software is an intellectual product in one repect, it
is also an industrial one with respect to its use. Now, how do you define
the interdependence and mutual relationship of the software product and
the hardware platform?
What happens, if as the producer of software you push this too far in the
direction of your own economic interests, we can all see now in the legal
proceedings and jurisdiction against Microsoft. Microsoft is not the only
culprit, to be sure, they are simply the most successful one. (And guess,
why all major software companies want you so much to be connected
permanently to the web and download your software on demand? That would be
the same as never giving you a physical copy of a book but rather charging
you whenever you read a single page.)
I personally favour the open source approach and am very much in favour of
a concept, which in combination gives the software author (or publisher)
his due reward in the form of revenue per copy per purchaser (the same as
with the traditional author of a book).
Thus, if a person or company bought a license of an office-application,
they should have the right to use it on every hardware-platform they own.
They should not be able, however, to copy it for someone else to use it
for his purposes.
Heinrich Heine once said: "There is no property of ideas". Just imagine
what will happen in the future - and is already happening right now, under
our very eyes -, if portions and elements of software are protected and
patented. In the long run this would turn out to be a hindrance to
progress and development and would make us pay for everything we do on a
computer, without ever giving us any right of ownership. I don't like this
new form of economic slavery to a few large software companies. (And
please bear in mind, that we are facing very much the same problem with
regard to all those investigating our genetic code.) So: protect
individual developers of software, but please bear in mind that legal
norms apply to all alike, the big ones just as much as the
Forgive me for rambling on so long, but I am convincend that this is and
will be one of the fundamental issues of the near future, with a direct
and dramatic bearing on our personal freedom.


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