38

I am writing a software license myself before I hire a lawyer.

Is it legal to copy a software license text from other companies to write my own?

I could not find anyone talking about the copyright of the software license itself. But many software licenses have the same text.

I found this post (Is it legal to copy a website's terms of use?) but not sure if this applies to a software license

  • 34
    If only licenses had licenses – TheEnvironmentalist Aug 28 at 3:23
  • 16
    @TheEnvironmentalist Licences all the way down. – Mast Aug 28 at 6:23
  • 15
    some licences do have licences. – Jasen Aug 28 at 11:41
  • 1
    You didn't say where you live and to which country you want to ship your software. However, this information is important because the text of contracts is not protected by copyright in every country: In Germany for example texts are only protected if they represent some "literary work", which normally does not apply to contracts according to two court decisions ("17 O 68/08" of LG Stuttgart; "6 U 50/09" of OLG Brandenburg). In both cases the courts decided that copying a contract that uses the normal grammar and style is not a copyright infringement. – Martin Rosenau Aug 29 at 9:07
  • 1
    I think in practice, lots of contracts copy parts from other contracts. – justasking111 Aug 29 at 11:39
34

Software licenses are protected by copyright, meaning that you need the author's permission to copy them. One way to get permission is to buy a license, since many of them are for sale. Sometimes (e.g. CC licenses) a license to copy the license is granted. You can also read and understand what is in a license, and use that knowledge to write your own. This is different from copying the license, since what you are extracting from the existing licenses is the ideas, not the specific expression.

| improve this answer | |
  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 1 at 1:54
21

Contracts and other legal documents, of which software licenses would fall, are protected by copyright, in general. However, not every contract would be; according to Kenneth Adams (NY Law Journal, 2006:

That doesn’t mean that every contract is so protected. If you copy someone else’s contract verbatim, changing only the party names, dates, and similar details, a court would likely find the contract insufficiently original and creative to support a claim of copyright violation if in turn someone were to copy your contract.

That said, a contract still can be protected by copyright (and, similarly, a software license) if it has some unique, "creative" additions to make it separate from, well, all of the other nearly identical licenses out there. The article above cites American Family Life Assurance Company of Columbus v. Assurant, Inc. (N.D. Ga. 2006) in supporting that contracts can be protected by copyright; in that case, Aflac wrote contracts in a "narrative" style that was more easily read by their customers, and Assurant copied those. The court held they were protected by copyright.

The article goes on to explore whether lawyers copying bits of other contracts are likely violating copyright, and determines that for the most part they aren't, though not because of fair use; but rather, because the contracts they're copying are for the most part copies of copies of copies, and thus aren't themselves protected by copyright any more than I would be protected if I typed out Romeo and Juliet.

Does such copying constitute fair use? There’s precious little to suggest that it does. If a law firm is able to produce for its clients contracts that are distinctive in terms of substance or language, the law firm would derive a competitive advantage that it would lose if its competitors were able to copy those contracts with impunity. But that’s not to say that corporate lawyers should stop copying from contracts they find on EDGAR or elsewhere. It’s a safe assumption that the vast majority of contracts are either outright copies that aren’t entitled to copyright protection or contracts that derive copyright protection from their status as compilations. Because any compilation contract would resemble countless other contracts, a law firm would likely have a hard time demonstrating breach of copyright of its compilation contract.

So the answer seems to be "sort of" - if you're copying a software license that is effectively the same as every other software license out there, then you're probably safe. Just don't copy one that's distinctive - do some searches to make sure what you're copying has a few thousand Google hits from different sites.

Or, just use one of the many CC licenses, which will happily allow you to use their text.

| improve this answer | |
  • I am not sure that a law firm's competitive advantage matters. Copyrights, as all IP, are only constitutionally authorized for the purpose of protecting creative expression. The purpose of legal representation is not artistic expression, but rather a competent representation by specialized individuals whose skill is in the knowledge and application of the law. Expressing legal ideas is part of the way that individuals interact with the legal establishment, and by extension, the government. Political speeches, for examples, do not enjoy copyright protection. Neither do laws. – grovkin Aug 28 at 22:16
  • In other words, if some lawyers decide to wax poetic in the contract which they write, it would protect them from being reprinted in a poem's journal, but it cannot prevent a party to the contract, who are being sued for breach, from making copies of the contract to mail to their lawyers for the purpose of representation. I don't believe the copyright law distinguishes between a party which can make unlimited reproductions and a party which can make derivative work. Without a license, a party is either forbidden both or neither. – grovkin Aug 28 at 22:23
  • Without a reference to a specific legislature or a resolved case's opinion, all the answers so far are hand waving. – grovkin Aug 28 at 22:28
8

It depends, which license do you want to copy?

If it's a FOSS license like the GNU GPL, the Apache License, or one of the BSD license variants, go for it. With the special exception of custom licenses created for specific projects, all FOSS licenses either have the required permission explicitly or implicitly stated in the license or have had the copyright holder consign the license to the public domain (or put the license text under a separate license that allows for copying, such as CC-BY-SA). Some minimal provision along these lines is actually required for a true copyleft license, because you have to allow the user to copy the license for any derivative works that they want to (or are required to) place under the same license terms.

If, however, it's the EULA for a piece of proprietary software, you're out of luck, because those usually cover themselves under the same licensure (in many cases, they're classified as part of the software itself) and even if they aren't the copyright holder has generally not granted any rights for usage by third parties of the license text.

| improve this answer | |
  • 2
    If you are going to use the exact text of the GPL then you can use it. You may not modify a copy of that license. That is stated explicitly in the GPL. – Itsme2003 Aug 28 at 5:41
  • 2
    @Itsme2003 Are you sure? It looks that way from "Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed" but the official FAQ says: "You can legally use the GPL terms (possibly modified) in another license provided that you call your license by another name and do not include the GPL preamble, and provided you modify the instructions-for-use at the end enough to make it clearly different in wording and not mention GNU (though the actual procedure you describe may be similar)." – Eliah Kagan Aug 28 at 11:36
  • 1
    @EliahKagan Yes, you can't modify it and still have it reference GNU in any way or call it the GPL. It's essentially equivalent to the clause in the MPL that prevents you from using Mozilla's name or original project branding in any custom versions of Firefox. – Austin Hemmelgarn Aug 28 at 11:42
  • @EliahKagan, I was basing what I said based on what is in the license itself. Based on what the FAQ says, it looks like you can. I was unaware of that. – Itsme2003 Aug 28 at 18:35
4

Practically anything in writing is protected by copyright, without any need to mention it. Someone paid a lawyer good money to write a license for them, so that person won’t be happy if you copy it.

There are some unusual cases: The GPL license allows you to copy the license, but the copyright owners will get very, very angry if you modify the license in any way.

| improve this answer | |
  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 1 at 1:54

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.