|This article relies too much on references to primary sources. (June 2008)|
Well known examples of license-free software formerly included programs written by Daniel J. Bernstein, specifically qmail, djbdns, daemontools, and ucspi-tcp. Bernstein previously held the copyright and distributed these works, but he placed them in the public domain on December 28, 2007.
Additionally, small scripts are frequently released without specifying a license. For example, the website Userscripts.org hosts more than 52,000 Greasemonkey user scripts, the majority of which have no specified license.
Rights for users
On his Software users' rights web page, Bernstein explains his belief that under the terms of copyright law itself software users are always allowed to modify software for their own personal use, regardless of license agreements. He says "If you think you need a license from the copyright holder, you've been bamboozled by Microsoft. As long as you're not distributing the software, you have nothing to worry about."
He also says that software users are allowed to back up, to compile, and to run the software that they possess.
He further says that "since it's not copyright infringement for you to apply a patch, it's also not copyright infringement for someone to give you a patch," noting the case of Galoob v. Nintendo as precedent. Thus modified versions of license-free software can legally be distributed in source code form in whatever way that the original can, by distributing a patch alongside it.
Although they come without a license document, it can be argued[weasel words] that such programs are legally bound by a license. For example, on his various web pages giving information for distributors, Bernstein granted permission for users to redistribute the packages, in source code form, verbatim. This permission granted by the copyright holder can be construed as a copyright license. However, there is significant and long standing dispute in the community as to its validity and weight, given the transient and wholly electronic nature of the license document.
These concerns have been expressed for the same reasons about the non-paper licenses of shrink wrapped software. Given Bernstein's own opposition to software licenses, arguments for the validity of Bernstein's web pages as licenses may also strengthen the case for the validity of "click wrap" end-user license agreements, although this seems unlikely because the latter are contracts, whereas pure copyright licenses need never be seen by a user to be in force. This contract variance makes sense: a difference remains in that Bernstein's license is purely permissive whereas most "click wrap" licenses forbid certain actions of the user.
Advocates of license-free software, such as Bernstein, argue that software licenses are harmful because they restrict the freedom to use software, and copyright law provides enough freedom without the need for licenses. However, free and open source licenses do not restrict the freedoms that license-free advocates want to protect. Though having some restrictions, these licenses allow certain actions that are disallowed by copyright laws in some jurisdictions. If a license tries to restrict an action allowed by a copyright system, by Bernstein's argument those restrictions can be ignored. In fact, Bernstein's "non-license" of verbatim retransmission of source code is very similar in nature.
The disagreement hampers the spread of license-free software, largely because the free software and open source philosophies are far stronger influences. For example, some Linux distributions used to classify qmail as "non-free" because when distributors modified it, the modified version could not be distributed.
- 17 USC 117
- (archive.org's snapshot copy of) The FSF's (erstwhile) categorisation of the qmail licence as "non-free"
- "qmail is not open source" - an article published by Russell Nelson, OSI board member (Note: now changed to "qmail is now open source" - an important difference!)
- Text of the Copyright Designs and Patents Act 1988 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
- Text of the Copyright and Related Rights Regulations 2003 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database