What is a Software License
Content
What Is A Software License? A software license is usually an agreement that grants a right to use software code to someone else. A license usually grants less rights than a sale of a copy of the software. The rights to use the code are defined by the terms of the license.
Why Are Software Licenses Important? Software is important; therefore software licenses are important. Today's businesses rely upon software to perform many critical functions. Software makes machines and systems work in every sector of the world economy - everything from applications that control advanced medical devices to programs that analyze the behavior of financial markets. Software developers may want to make code available to other developers in order for applications to be more widely used in the market. Manufacturers and publishers may want to acquire rights to software that can make their products work in new ways or in ways compatible with customers' existing computer systems. In order to have the legal right to use software to achieve the required needs, the rights and limits in the associated software license take on critical importance.
How Does A Software License Agreement Work? The author of the software code frequently owns the code. In cases where the developer of the software is an employee of a company, the company is usually the author. The owner of the code controls who gets to use the code and how the code is used. The software license may define who can use the code and in what circumstances. Standardized "end user license agreements" (EULAs) are common for most consumer and commercial mass produced software. When someone "purchases" software, the owner of the software typically requires the user to agree to license terms by clicking to indicate agreement to a set of terms that is required before the software can be installed or operated on a computer. The user is not really "purchasing" the software, but is licensing the software. When specialized or customized software is involved, the license is often a signed written agreement that includes terms that are customized to fit the needs of the parties to the license agreement.
What Can A Software License Cover? A software license can address a wide range of issues regarding the use of the software. It can specify how and where the software may be distributed and installed on the licensee's computers, and who may use the software. For example, the software license may specify... a. how long the software may be used, b. under what conditions or in what systems the software may be used, c. the support for the software (updates, upgrades, or technical assistance), d. the cost of the rights to use the software, e. the warranty terms, if any, f. the liability of each party for damages that result from the licensee's use of the software, software, h. how and where any disputes will be resolved, i. j. the user's rights to obtain access to the source code from an escrow under certain circumstances, and any other issues important to the parties. g. ownership rights in the software, and any product that is developed using the licensed
How Can An Attorney Help With The Licensing Of Software? One of the most complicated issues in software licensing is who owns software that is developed for a customer. The attorney can help so that substantial sums of money are not spent on software that the developer does not have the right to license or the customer does not get the right to own or appropriately use. The attorney can help a client identify how the software will be used and, using that information, counsel the customer on legal issues that can arise in developing, sharing, and using software for the necessary purposes. The attorney can help the client in developing audit procedures to comply with terms of an existing or proposed software license. The attorney can help the client to avoid unwanted or uninsured liability.
The attorney can help the client achieve the optimum use of and value for existing software and code that may be developed in the future.
Benefits of Software Licensing
Choosing the right software licensing agreement for your business not only gives you the right to use the software you need, it also helps you manage your software assets more effectively, saving you time, money and effort. What are the benefits of software licensing? Allows you to legally distribute software within your organization as covered by the licensing agreement. Provides expert help and advice whenever you have a concern or query regarding your software licensing agreement. Preferential pricing and Volume discounts are available on most programs. Selected programs include technical support. Improves the manageability of your software assets. Volume licensing simplifies and streamlines all your software purchasing, re-ordering and accounting procedures.
Jurisdiction
Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extraterritorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic as the medium of the Internet does not explicitly recognize sovereignty and territorial limitations. There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of laws, particularly private international law. An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue. Another major problem of cyberlaw lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise
according to the conditions of our world, not yours. Our world is different". A more balanced alternative is the Declaration of Cybersecession: "Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no [3] ethical right to intrude our lives. So stop intruding!" Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig's argument that "The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once" (Lessig, Code 190). With the internationalism of the Internet, jurisdiction is a much more tricky area than before, and courts in different countries have taken various views on whether they have jurisdiction over items published on the Internet, or business agreements entered into over the Internet. This can cover areas from contract law, trading standards and tax, through rules on unauthorized access, data privacy and spamming to more political areas such as freedom of speech, censorship, libel or sedition. Certainly, the frontier idea that the law does not apply in "Cyberspace" is not true. In fact, conflicting laws from different jurisdictions may apply, simultaneously, to the same event. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions [4] and are subject to laws independent of their presence on the Internet. As such, a single transaction may involve the laws of at least three jurisdictions: 1. the laws of the state/nation in which the user resides, 2. the laws of the state/nation that apply where the server hosting the transaction is located, and 3. the laws of the state/nation which apply to the person or business with whom the transaction takes place. So a user in one of the United States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the [5] transaction at hand. In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct, and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, he or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower. Internet governance is a live issue in international fora such as the International Telecommunication Union (ITU), and the role of the current US-based co-ordinating body, the Internet Corporation for Assigned Names and Numbers (ICANN) was discussed in the UN-sponsored World Summit on the Information Society (WSIS) in December 2003
[2]
Why Are Software Licenses Important? Software is important; therefore software licenses are important. Today's businesses rely upon software to perform many critical functions. Software makes machines and systems work in every sector of the world economy - everything from applications that control advanced medical devices to programs that analyze the behavior of financial markets. Software developers may want to make code available to other developers in order for applications to be more widely used in the market. Manufacturers and publishers may want to acquire rights to software that can make their products work in new ways or in ways compatible with customers' existing computer systems. In order to have the legal right to use software to achieve the required needs, the rights and limits in the associated software license take on critical importance.
How Does A Software License Agreement Work? The author of the software code frequently owns the code. In cases where the developer of the software is an employee of a company, the company is usually the author. The owner of the code controls who gets to use the code and how the code is used. The software license may define who can use the code and in what circumstances. Standardized "end user license agreements" (EULAs) are common for most consumer and commercial mass produced software. When someone "purchases" software, the owner of the software typically requires the user to agree to license terms by clicking to indicate agreement to a set of terms that is required before the software can be installed or operated on a computer. The user is not really "purchasing" the software, but is licensing the software. When specialized or customized software is involved, the license is often a signed written agreement that includes terms that are customized to fit the needs of the parties to the license agreement.
What Can A Software License Cover? A software license can address a wide range of issues regarding the use of the software. It can specify how and where the software may be distributed and installed on the licensee's computers, and who may use the software. For example, the software license may specify... a. how long the software may be used, b. under what conditions or in what systems the software may be used, c. the support for the software (updates, upgrades, or technical assistance), d. the cost of the rights to use the software, e. the warranty terms, if any, f. the liability of each party for damages that result from the licensee's use of the software, software, h. how and where any disputes will be resolved, i. j. the user's rights to obtain access to the source code from an escrow under certain circumstances, and any other issues important to the parties. g. ownership rights in the software, and any product that is developed using the licensed
How Can An Attorney Help With The Licensing Of Software? One of the most complicated issues in software licensing is who owns software that is developed for a customer. The attorney can help so that substantial sums of money are not spent on software that the developer does not have the right to license or the customer does not get the right to own or appropriately use. The attorney can help a client identify how the software will be used and, using that information, counsel the customer on legal issues that can arise in developing, sharing, and using software for the necessary purposes. The attorney can help the client in developing audit procedures to comply with terms of an existing or proposed software license. The attorney can help the client to avoid unwanted or uninsured liability.
The attorney can help the client achieve the optimum use of and value for existing software and code that may be developed in the future.
Benefits of Software Licensing
Choosing the right software licensing agreement for your business not only gives you the right to use the software you need, it also helps you manage your software assets more effectively, saving you time, money and effort. What are the benefits of software licensing? Allows you to legally distribute software within your organization as covered by the licensing agreement. Provides expert help and advice whenever you have a concern or query regarding your software licensing agreement. Preferential pricing and Volume discounts are available on most programs. Selected programs include technical support. Improves the manageability of your software assets. Volume licensing simplifies and streamlines all your software purchasing, re-ordering and accounting procedures.
Jurisdiction
Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extraterritorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic as the medium of the Internet does not explicitly recognize sovereignty and territorial limitations. There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of laws, particularly private international law. An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue. Another major problem of cyberlaw lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise
according to the conditions of our world, not yours. Our world is different". A more balanced alternative is the Declaration of Cybersecession: "Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no [3] ethical right to intrude our lives. So stop intruding!" Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig's argument that "The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once" (Lessig, Code 190). With the internationalism of the Internet, jurisdiction is a much more tricky area than before, and courts in different countries have taken various views on whether they have jurisdiction over items published on the Internet, or business agreements entered into over the Internet. This can cover areas from contract law, trading standards and tax, through rules on unauthorized access, data privacy and spamming to more political areas such as freedom of speech, censorship, libel or sedition. Certainly, the frontier idea that the law does not apply in "Cyberspace" is not true. In fact, conflicting laws from different jurisdictions may apply, simultaneously, to the same event. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions [4] and are subject to laws independent of their presence on the Internet. As such, a single transaction may involve the laws of at least three jurisdictions: 1. the laws of the state/nation in which the user resides, 2. the laws of the state/nation that apply where the server hosting the transaction is located, and 3. the laws of the state/nation which apply to the person or business with whom the transaction takes place. So a user in one of the United States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the [5] transaction at hand. In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct, and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, he or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower. Internet governance is a live issue in international fora such as the International Telecommunication Union (ITU), and the role of the current US-based co-ordinating body, the Internet Corporation for Assigned Names and Numbers (ICANN) was discussed in the UN-sponsored World Summit on the Information Society (WSIS) in December 2003
[2]
