Customer Reviews

The Software License Unveiled: How Legislation by License Controls Software Access

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Considering the somewhat technical nature of the topic, I found this book surprisingly enjoyable to read. Some of the author's opinions seemed very insightful (such as when he shows how EULAs are stacked against users for the same reason privately-sold used cars are often "lemons"). Others seemed like more of a stretch (such as when he argues that bad EULAs make software buggier). Whether you buy all the ideas or not, though, by the time you finish the book you feel you've really been through all the twists and turns. The things you see on the Internet about EULAs and open source software will make a lot more sense (or did to me, anyway) after reading this book.

The title seems to be referring to the book's argument that EULAs are "hidden in plain sight" because most people click yes to them without reading the terms. A more accurate title might have been "The Software License Reviled." It seems the author, Douglas Phillips, has never met a software license he liked. The first part of the book explains in detail what's wrong with EULAs, and then the second part criticizes the GNU General Public License, calling it an "anti-EULA." Phillips concludes that proprietary software companies should sell copies of their software or, if there has to be a license, be required to distribute them under a "minimal EULA." He outlines some ideas for possible legislation to bring this about. His conclusion that EULAs are bad isn't necessarily a big surprise, but he gives what appears to be a novel explanation of why EULAs are so bad (he doesn't think there's any "evil conspiracy" among the Microsofts of the world and attributes it instead to the economics of information asymmetry). There will probably be more controversy over his argument that open source software should be dedicated to the public domain or at most distributed under a "simple permissive open source license." There's a fascinating chapter on what would have happened if Tim Berners-Lee, who created the World Wide Web, had licensed the original web software under the GPL rather than having it be dedicated it to the public domain as he did. This book is definitely not another open source manifesto.

A thought-provoking tour through the thicket of licensing theory and practice. Phillips peels back the clickwrap and exposes the issues behind modern EULAs, GPL, open source, copyleft, etc. The text is both interesting and dense, and covers the field in a reader-friendly way. For anyone interested in software licensing, this should be required reading. Only problem -- after your done you might never click "Agree" again.

This book goes well beyond the shrill polemics that typically surround this subject. Indeed, it presents an "out of the box" alternative to the two traditional camps. And given the explosively increasing importance of intellectual property issues in our economy, it is a timely read. I enjoyed it a lot, despite the challenging content and emphasis on a rigorous conceptual framework that focuses economic, legal and social principles on the key issues. There is also a nice dose of historical perspective which injects not only a contextual element but also a wicked slice of humor. Neither side is spared! Enjoy...

This book is an interesting read for copyright lawyers as well as software professionals. Policymakers in Congress should read it too, but that doesn't seem likely. The Software License Unveiled was enjoyable because of the many interesting facts and analyses. That the book is concise (in marked contrast to most scholarly books) means it was a pleasure, rather than a drudge, to read.

The law about software copyright developed almost entirely during the life of most copyright lawyers. When I was still in college, I was typing programs on punch cards. Free "software" was limited to cards that would print out a "Snoopy" on the 18-inch wide paper we used. Much has happened since then.

The book discusses a seminal article by Bill Gates written in 1976 about hobbyists (and those were the persons using computers back then) who copied software without paying for it. One wonders how the computer industry would have developed if Bill Gates' father hadn't been a named partner at a major Seattle firm (one that I interviewed with but didn't receive an offer). One supposes that someone else would have filled the role of Microsoft.

Although we all know about the several versions of GPL (and if not, the book is a great introduction to the subject), I did not know about Richard Stallman, the inventor of "copyleft," as distinguished from "copyright." Although Stallman believes in no copyright protection, he "sold" the disks upon which the "free" software was recorded. Stallman felt this was not a violation of his principle that all software should be free--a distinction without a difference that even a lawyer can chuckle about. Beyond these interesting tidbits, the book provides a thoughtful analysis of the GPL and "copyleft." The book discusses the "viral" nature of GPL software, but omits a discussion of the vendors who have grown up in response: vendors who screen software for GPL contamination.

The EULAs or "shrink-wrap licenses," which we all take for granted as enforceable, were of uncertain validity until the ProCD case in only 1996. A number of interesting thoughts about the ridiculously one-sided nature of EULAs: what is there to limit EULAs? Software vendors could include language in the EULA that would allow the vendor to install adware and spyware on the users' computers without their knowledge or permission. What prevents the vendors from doing so? Certainly not any negotiations between most consumers and the vendors. What about a few sophisticated consumers (such as IT professionals in large corporations)? Or public interest groups (such as the Electronic Privacy Foundation) that shame the vendor into a more reasonable EULA?

From a policy perspective the larger question is whether all the important doctrines included within the Copyright Act are allowed to be superseded by EULAs: fair use, reverse engineering of uncopyrightable elements. The later point is dear to me since I worked on a major case involving the application of a license to the reverse engineering of unprotectable elements of a program. The decision was depublished by the California Supreme Court, but that battle has long been lost due to language included in most EULAs. Yet, for our society, does this make good policy?

A third approach, different than GPL and EULA, is open source. As we all know, SCO and the other UNIX service providers existing on servicing public domain software. A bit more attention to the various open source programs other than UNIX would have been interesting.

The book contains well-written and understandable explanation of some major economic analyses of software licensing: economic efficiency, information asymmetry, intangible property, the hypothetical extension of licensing to other goods, for example, what if hammers were licensed pursuant to a EULA instead of sold?

In summary, intellectual property attorneys, licensing attorneys and software professionals should all enjoy this book.

As a disclosure, I know the author, and despite that it was a pleasure to read and I recommend the book to my friends.