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License-free software is computer software that is not explicitly in the public domain, but the software owner has not made explicit the terms of the license which makes the software fully copyright protected according to the Berne convention.
Well known examples of license-free software formerly included programs written by Daniel J. Bernstein, specifically qmail, djbdns, daemontools, and ucspi-tcp. Bernstein held the copyright and distributed these works without license until end of 2007/2008. With December 28, 2007 he started dedicating his software in the public domain with an explicit waiver statement.
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. Similarly, github reported in 2015 that 85% of the projects are unlicensed.
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.
Reception and discussion
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.
In 2013 Luis Villa argued similarly negative about the license usage of "open source", when the small number projects licensed on GitHub were noticed, identifying a "Post Open Source movement against the (license) permission culture".
- "qmail is not open source" - an article published by Russell Nelson, OSI board member in 2004
- "Frequently asked questions from distributors". 2007. Retrieved 2008-01-18.
- "Information for distributors". 2007. Retrieved 2008-01-18.
- "Scripts — Userscripts.org". Archived from the original on May 6, 2014. Retrieved 2010-06-29.
- the-github-kids-still-dont-care-about-open-source on techrepublic.com
- "Software user's rights". yp.to.
- Driving Without a License? on ninapaley.com "I can’t work up enthusiasm for any license today." (2010)
- taking-post-open-source-seriously-as-a-statement-about-copyright-law/ on lu.is (2013)
- 17 USC 117
- FSF's (erstwhile) categorisation of the qmail licence as "non-free" (archive.org's snapshot)
- "qmail is not open source" - an article published by Russell Nelson, OSI board member in 2004, on end of 2007 it was changed to "qmail is now open source"
- Text of the Copyright Designs and Patents Act 1988 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk