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 machinelanguage 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.
Bibliography
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2013. Web. 10 Apr. 2015.
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