Software Licence: Commentary

Robert J Morton

Commentary on Software Licence

To read this commentary in conjunction with the software licence it explains, please flip back and forth between the two using your browser's back & forward buttons. Comment is made only on those clauses which have specific relevance to the nature of computer software.

Clause 3: Intellectual Property

People have little difficulty understanding the notion of ownership when applied to tangible material things. One readily understands that it is wrong to steal a car and that the laws of practically every country exact a penalty for doing so.

However, their understanding of theft is sadly lacking when it comes to intellectual property like computer software, writing and music. After all, copying a computer program does not remove it from its original owner's possession.

What they cannot seem to grasp is that what is sold for the amount of a family's weekly food bill took tens of thousands of man-hours of programming effort to produce. That cost, together with a fair profit, can only be recovered from the market if users actually pay for their copies. It they do not, quality will deteriorate and the industry could even die.

Clause 5: Improvements

Having completed a piece of software, I always had a constant rush of ideas for additions and improvements. All to often, after the event, users would come up with the same ones and expect some reward when their ideas were incorporated in the next release. Some ideas were indeed originated in the first instance by users. But not many.

Clause 6: Astronomical Complexity

Recent legal debate has gravitated towards the notion that computer software - as a saleable good - is no different from a vacuum cleaner. It must be just as fit for its intended purpose and as free from defect. A vacuum cleaner has a single - easily demarcateable - universal purpose wherever it is being used. Application software does not.

Businesses are as diverse as the people who run them and the markets they serve. So therefore are the data objects and processes used to control and record their goings on. This means that even standard applications have to be configured in an infinity of different ways, few of which can ever be tested within a viable time frame.

Advanced structuring techniques help, but sheer statistics alone dictate that problems must occur sometime. If buyer and seller are to benefit from software, the confrontational spirit of law must give way to a spirit of co-operation and teamship serving a shared interest in creating a satisfactory working system.

In countries in which such legislation effectively voids Clause 6, I fear that many software developers may consider it too risky to continue trading. This will result in a serious loss in the quality and diversity of software available in those countries.

Clause 7: Dependence on Others

A vacuum cleaner depends on no other mechanism in order to be able to perform its intended task. Not so with computer software. The latter relies on the proper performance of both computer hardware and system software in order to perform its own tasks properly.

These are extremely complex and their internal workings are not visible to the developer of the application software which relies upon them. One cannot rightly be held responsible for the malfunctioning of something which is outside and beyond one's control.

Clause 8: Practical Limitations

There was once a wealthy businessman who bought a brand new very up-market sports car. One dismal winter's day he parked his car at the back of a building where it was dark and there were muddy puddles. So that he would be able to see his way back and avoid stepping in the puddles, he left his car headlights on while he went into a meeting. The meeting went on and on. Eventually, when he got back to his car it was very late. The headlamps on his car had become very dim. His car would not start. He had an evening appointment which he missed.

He sued the garage who sold him the car for the consequential loss of business and the inconvenience caused by his new car's failure. He lost the case, but the garage proprietor did suffer considerable expense, stress and loss of time as a result. To the wealthy businessman it was neither here nor there. If one can be that ignorant about the workings of a car what chance does a software developer have with such a person? Clause 8 is an attempt to gain some protection against such as him.