License-free software

Licence-Free Software is software that is copyrighted but which is not accompanied by a software licence.

Examples of Licence-Free Software

The most well-known examples of Licence-Free Software are various packages written by Daniel J. Bernstein (although other authors, such as William Baxter, have followed in his footsteps), notably qmail, djbdns, daemontools, and ucspi-tcp. These are all copyrighted and distributed by Bernstein. Bernstein writes on his page about software users' rights, "If you think you need a license from the copyright holder, you've been bamboozled by Microsoft.".

Although they do not come with a "licence" document, it can be argued that qmail, djbdns, et al. are not entirely license-free in a legal sense. On his various web pages giving information for distributors, Bernstein grants 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 licence. 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 licence document. (These same concerns have been expressed about the non-paper licences of shrink wrapped software, and for the same reasons. Ironically, given Bernstein's own opposition to software licences, arguments to support the validity of the Bernstein web pages as licences also strengthen the case for the validity of "click wrap" end-user licence agreements.)

What users can do with Licence-Free Software

On his page about software users' rights 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 "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 Galoob v. Nintendo case as precedent. Thus modified versions of Licence-Free Software can legally be distributed in source code form however the original can, by distributing a patch alongside it.

Difficulties with Licence-Free Software

The irony of the claim that people have been "bamboozled" by Microsoft into thinking that they need a licence is that by that token the OSI and FSF are also "bamboozling" people in the same manner. The FSF, for example, strongly encourages authors to employ copyright licences, specifically the GPL. Indeed, the difference between the FSF's philosophy and and the Licence-Free Software philosophy can be paraphrased:

Licence-Free Software: Copyright licences are bad. And you will be surprised how much copyright law, by itself, allows, without need for "licences". Avoid copyright licences.
: FSF: Copyright licences are bad. But the way that the copyright system is currently structured requires that we use them to achieve our goals. So use this licence.

Another major difficulty with Licence-Free Software is that base copyright law is not uniform, particularly with regard to computer programs. One purpose of "open source" and "free software" packages actually having software licences is the levelling of the playing field across jurisdictions. Bernstein's explanation of software users' rights is based upon United States copyright law. The copyright law of other countries, such as the United Kingdom, is subtly different with respect to computer programs, and more restrictive. The software licences of "open source" and "free software" packages explicitly waive the rights that statute law in some countries may reserve to copyright holders, which U.S. law does not.

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