I have need to put together a license for some software which I’d like to distribute. Obviously, hiring a lawyer would be best, but I need to do this on the cheap. Besides, the terms of the license will be very close to existing licenses out there and most likely I will use clauses which already exist with few to no modifications.
I would like to simply copy these clauses wholesale, but obviously this depends on whether they are themselves copyrighted. For instance, just about every open license out there has a clause virtually identical to: THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY… blah blah
It sure seems like some lawyer in the distant past wrote that passage, and perhaps after a few iterations, everyone else simply copied it. That would seemingly indicate that licenses are not protected. Is that true? Does it matter if we’re talking individual clauses or full licenses?
Note that I’m not trying to ask for legal advice here, just an answer to the specific question over whether license text is under copyright.
It would be next to impossible for anyone to claim copyright on the wording of a legal form. If you copied one verbatim from start to finish, there theoretically could be an issue, but I doubt it would ever come to a lawsuit, since most of the text would have come from other sources to begin with.
You should be able to lift standard boilerplate text like, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND…
For a slightly different example, do a Google search on “terms and conditions generator”. You enter the name of your business and out comes the boilerplate.
They are most certainly copyrighted under current US and similar laws. They are non-trivial (vs. a title or list) written works! The authors don’t have to do anything. They are born copyrighted. (But to sue for extra damages requires filing a formal copyright.)
There is actually some confusion as to whether something can be deliberately placed in the public domain. It might not be possible.
Even if they don’t say “Copyright” on them or some idjit added “Public domain”, they are copyrighted. The issue is if the copyright holders care.
This article explains how copyright attaches to legal documents pretty well. It’s important to note (as you guessed) that lawyers almost invariably steal their boilerplate language from someone else, and so on, until you get back to the original author who probably took it verbatim from the underlying decisional authority (which is public domain.)
To make an analogy, I’ve wondered whether citations and citation styles, and formatting requirements themselves (e.g. font size, margins, headers, etc.) need to be cited in academic work. E.g. if I am writing a paper for a class and the instructor asked me to use APA style, do I need to cite the APA style guide as justification for using certain capitalization or punctuation practices? If a research tool provides a “suggested citation” for a resource in its database, obviously I need to examine it to make sure it makes sense and conforms to the style requirements of the paper, but do I then need to cite my source for the citation? I don’t think anyone would reasonably do this, but I did seriously consider it at one point.
E.g.
…According to Johnson (1995) (American Psychological Association, 2009), quadrilateral hypotenuses are effective in the treatment of rheumatoid transneptunianism (p. 45) (American Psychological Association, 2009)…
…The margins of this paper are set according to the American Psychological Association (2009).
American Psychological Association. (2009). Publication Manual of the American Psychological Association…
Johnson, John. (1995)…
I know that doing this is not reasonable, but those “shock” and “zero tolerance” lessons that we are given about how plagiarism is worse then molesting children and that you will be expelled and you must police yourself everyday, every hour doesn’t exactly promote trying to find a happy balance between being honest and being reasonable.
Mostly because I couldn’t find one that matched my requirements. Specifically, I want one that allows maximum freedom for use in educational environments, but is restricted elsewhere (including commercial use).
It might be enough to simply restrict commercial use, but that’s not quite what I want to go for right now.
The closest license that I could find is the Doom Source License. However, it has a bunch of Id Software specific stuff in it that I would have to replace if I were to use it for myself. Plus, it’s sounding like it’s not really kosher to do that kind of modification, and at any rate it’s still not quite what I want.
That’s really interesting; thanks. I think my uncertainty came from a combination of:
the copied boilerplate text
the fact that there is an “implied license” which allows unlimited copying (among other things)
Plagiarism doesn’t have much to do with copyright. As Really Not All That Bright’s cite points out, an fundamental principle in copyright law is the idea-expression dichotomy, which basically states that only the words used to express an idea are copyrighted, not the idea itself.
Clearly, the rules for academic citations are as much about ideas as they are about expression. It’s trying to solve a different problem.
Thanks. Those still don’t quite do what I want, but the boilerplate may come in handy.
The Creative Commons one says that they aren’t appropriate for software. They have a FAQ entry but it doesn’t really give a convincing argument.