Open
Source Law Publications
Lock
in Software
Brendan Scott
Introduction
In July last year the author wrote a
paper which argued that the total cost of ownership of free software
would, in the long run, always be lower than that of equivalent
software created under different models. One of the problems we
grappled with when writing that paper was how to name those different
models. At the time we adopted a term which appeared to be used
widely, that of “proprietary software”. We now believe
our (and others') use of that term is not only inaccurate, but plain
wrong and ought to be changed. In this paper we set out reasons and
propose an alternative, more appropriate, term - “lock in
software
identified, but not adopted.
The State of Play
In the free software debate there
appear to be three terms which set demarcation boundaries within the
software pantheon. Those terms are “free software”,
“open source software” and “proprietary software”.
Of each of these the terms both “free software” and
“open source software” have clear, defined meanings.
However the term “proprietary software” seems to be
defined by exclusion – it is commonly used to apply to software
which isn't free and isn't open source. The concept of property
stands on hallowed ground in most western political systems. By
implication the terminology as currently used allows vendors
threatened by market competition from free software to cloud the
issues by painting their competitors as somehow being anti-property,
and therefore evil.
“Proprietary
software” does not exist ...
The primary reason that the use of
“proprietary software” is inappropriate is that it is
inaccurate. There is no property in software, and there never was
(the Supreme Court reference, for those of you who are interested, is
Wheaton v Peters 33 US 591 (1834),
which held that there is no such thing as copyright in US common
law). What there has been is a concerted effort by a number of
vested interests over the past 20 years to characterise software
production as uniquely in need of (non monetary) subsidies from
government. The key means of achieving this has been the use of a
rhetoric of property. Property is a concept which is well
understood. A property analogy, if adopted and taken to its logical
conclusion, means not only that such interests do not need to
properly justify their call for subsidies, they can argue an
entitlement to such subsidies as of right. In this respect they have
been remarkably successful over the past 20 years, gaining non
monetary subsidies and legislative largess other industries only
dream of.
And even if it did
As we have just discussed, we do not
concede in this paper that there is property in software. We believe
the term “proprietary software” is an oxymoron. However,
for the sake of the argument we will assume that it is meaningful to
speak in terms of property or ownership in software deriving from the
copyright monopoly. Even if we concede ownership it does not give
rise to a meaningful distinction between free software and its non
free counterparts. What it does do is create a distinction between
software over which legislative rights are asserted and other (ie
public domain) software. However there is no direct connection
between free software and public domain software. Some free
software is in the public domain, some public domain software is also
free software.
What should be clear is that if
software is subject to a license then any ownership in that software
exists independent of the manner of licensing. In this respect (non
public domain) free software is every bit as “proprietary”
as software which is not free (and not in the public domain). It is
“owned” by someone who licenses it on the terms of a free
software license. To illustrate the point, let us take an example
where property actually does exist - if I own a hammer that hammer
remains my property if I license my neighbor to use that hammer. The
terms of the license do not affect my property in the hammer. No one
would say the hammer is more my property because I choose to license
my neighbor for a fee, or if I license it to them on the basis that
they (for example) don't use it on their kitchen or with any other
tools not supplied by me (or on any manner of other anticompetitive
terms). In the software world there seems to be the assumption that
if someone profits out of the grant of a license then the software is
more entitled to the use of the term “proprietary”. In
the hammer example no one would contemplate calling my hammer a
“proprietary hammer” simply because I choose to license
its use for a fee or subject to restrictive terms. The only time the
hammer would not be my property is when I renounced my ownership in
it (the software equivalent would be putting the software into the
public domain), not when I asserted my ownership, but permitted
others to make use of the hammer (which is the case in all software
licenses).
The same is, or ought to be, true for
software. When a software package is created a person is vested by
the legislature with a wide range of monopolies in relation to that
package. These privileges vest regardless of whether or not any
licenses are granted over that package and regardless of the terms of
any such license subsequently granted. If a software package can be
called proprietary prior to the grant of its first license it remains
proprietary after that grant and irrespective of the terms of the
license. Licensed free software is every bit as “proprietary”
as licensed non free software in this respect. Licensed free
software still has a specific person or persons in whom monopoly
privileges vest in exactly the same way as does licensed software
which is not free software. Indeed, licensed free software such as
GPLed software would not be possible without that “property”
(because the license terms would not be able to be enforced, being a
license the GPL relies explicitly on monopolies granted by the
copyright law). Unless and until such the rights over the software
are renounced – that is, it is released into the public domain
– it is every bit as “proprietary” as licensed
software which is not free software. The complement of “proprietary”
software is not “free software”. The complement of
“proprietary” software is public domain software –
software over which no one asserts any rights to control other
people's use of the software.
In our view the key characteristic of
software ought to be the terms on which it is licensed and the
principal aims of those terms. Thus, to adopt the property analogy,
GPL software is proprietary software licensed in a way aimed to
maximize the freedom of its licensees. The fact that it maximises
those freedoms does not make it any less “proprietary”
software. Similarly all free software and open source software which
is subject to license conditions is “proprietary” in this
sense”. However, the balance of software is not “proprietary
software”. Rather it is proprietary software licensed on terms
more restrictive than free software.
What is the defining purpose of those
licensing terms? While one of those purposes is often to make money
as a result of the license this is not a purpose alien to free
software, where one purpose may be to derive money from maintenance
sold at the same time as the license grant. Nor is money making
always an objective of software licensed on non-free software license
terms – many vendors give away software which is not free
software as updates or complements to their existing products. The
defining characteristic of licenses which are not free software
licenses is that they attempt to foreclose competition to a greater
or lessor degree. Licensors of software which is licensed other than
as free software do so in order to maintain control over not only the
use and the further development of that software, but also over who
is permitted to provide ancillary goods and services in relation to
that software. Where a person chooses to license software on a basis
other than as free software they do so with a dominant purpose of
locking the end user into them (or their resellers, distributors and
agents) for all their needs in relation to that software for the
entirety of the effective life of that software.
We believe it is this characteristic
which properly distinguishes free software from software licensed on
other bases. It is for this reason we argue that the most
appropriate term for software which is not licensed as free software
is “lock in software” because it succinctly describes
part of the quid pro quo of agreeing to the license terms.
Further, lock in software can be given a sensible, if somewhat fuzzy
definition – it is software the license terms of which tend to
lock the user in to a vendor or otherwise create a legal dependency
by the user on a vendor.
The analysis above also suggests other
terms: hostageware, because the customer is held hostage to the
vendor, anti-trust ware, because, in the absence of specific
legislative exceptions these license terms would likely be illegal
trusts; anti competitive ware or monopolyware because at their heart
the purpose of the licensing terms is to promote or preserve a
monopoly over the software. For one reason or another, we consider
these alternatives to be inappropriate. No doubt the community will
settle on an appropriate alternative to the incorrect “proprietary
software” in time.
Free software proponents also use the
term “non free software” and may argue this is a more
appropriate, or more accurate term. In a similar vein open source
proponents may argue for “closed source”. While we
believe the terms “non free software” and “closed
source” are both accurate and technically correct, the
“non-free”/closed terminology fails to convey the key
characteristic of non free software to decision makers who are
unfamiliar with the free software philosophy and the reasons why
software freedom is an issue, let alone an important one. It is on
this basis that we believe lock in software is the better term to
use, especially in material directed to a generalist audience.
We also note that the important element
here is that the license terms create the lock in. If a user is
beholden to a vendor for other reasons (such as that vendor's
expertise or knowledge of that user's organisation) that lock in is
not relevant for the purposes of determining whether software
licensed by that vendor is lock in software.
Conclusion
In the first instance the term
proprietary software is inaccurate to apply to software. The
rhetoric of property is simply a political device (admittedly used to
great effect) by rent seekers seeking government subsidies. However,
even if used to mean that the legislative monopoly of copyright
granted over software is some form of property then free software is
equally as proprietary as any other software which is not in the
public domain. The only non “proprietary software” would
be software which has passed into the public domain. The main
characteristic which distinguishes licensed software into software
which is free software and software which is not free softwae is the
whether or not the license terms seek to lock the user or customer in
to a vendor. For this reason we believe the term “lock in
software” should be used in preference to the term “proprietary
software” when referring to licensed software which is not free
software (and not in the public domain). It conveys more meaning to
decision makers not conversant with free software's philosophy than
does the terms “non free” and “closed source”
software. Finally the use of “lock in software” in
preference to “proprietary software” prevents its critics
misrepresenting free software and its proponents as somehow anti
property.
About the author
Brendan is a lawyer in Sydney
specialising in communications and information technology law. As at
March 2003, Brendan's home page is
www.members.optusnet.com.au/brendanscott.
Note: I would like to thank David Wheeler for identifying and commenting on errors in an earlier draft of this paper.
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