3

For example, there's the GPL license:

https://www.gnu.org/licenses/gpl-3.0.en.html

And I assume they made it themselves.

Can anybody create their own license? That is to say, can I for example create my own license under which I can license software? If so, then I have a followup question:

Can you mandate how a software will be released? For example, I'd make this kind of license:

This software is licensed under the [INSERT_NAME_LICENSE] you have the right to freely use, distribute and modify the software, under the condition that any derivative software created based on this software, or created by this software, will necessarily also use [INSERT_NAME_LICENSE] and cannot be sold.

Also, would the following clause even be legal?

Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up

Basically saying that if you use software under the [INSERT_NAME_LICENSE] license to create anything, your creation will automatically be under the [INSERT_NAME_LICENSE] license, even if you completely remove all code created by the original software under [INSERT_NAME_LICENSE] in a future update, your derivative work and the intellectual property associated with it will have to be under the [INSERT_NAME_LICENSE] license. Even if they create the exact same work from scratch without the use of my software. Is that even legal?

1
  • 2
    Nothing stopping you to stipulate that anyone who wants to use or make use of your software must run naked in the street at noon local time for 3 minutes. :) Dec 24 '20 at 19:49
7

Can anybody create their own license? That is to say, can I for example create my own license under which I can license software?

Yep. It's just a contract granting rights to use a copyrighted work. You can write your own contracts, so you can write your own software license. It's just often recommended that you don't, because common licenses are more well-understood, and inexperienced drafters may make errors that could result in problems, such as unintended restrictions, failing to restrict things that were intended to be restricted, or creating provisions that aren't enforceable in some/all jurisdictions.

Can you mandate how a software will be released?

Yes. Many software licenses, including GPL, do. The restrictions you describe in your example sound similar to CC BY-NC-SA.

Also, would the following clause even be legal?

Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up

I'm not entirely certain, but "even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up" seems, in my opinion, unlikely to be enforceable—especially "even if the work is rebuilt from the ground up." How would you differentiate a complete rebuild from a totally new piece of software?

More broadly, once your copyrighted code is no longer in the product, there's nothing for them to license from you. It's hard to imagine how you'd be able to claim that you're harmed by someone releasing a new version of a product that used to contain your code under a different license. Without harm to you, there's nothing for a court to redress.

5
  • My reasoning was that if you agree to the license, you agree to the clauses within the license. So if the clause is "your product/software still has to be under this license even after you remove our code", the user knowingly agrees to it, no? Also if by the license you agree that the intellectual property created with the software has to have the license, doesn't it mean that any product created under the same IP should be subject to the license?
    – Mesos
    Dec 24 '20 at 11:54
  • 2
    I'm not particularly familiar with contract law, so take what I say with a grain of salt, but I would expect that you'd have difficulty claiming a harm redressable by a court due to a new version of the software being released under a different license. Normally, with software licenses, your copyright would have been violated, but that's not the case here if they're no longer using your software.
    – Ryan M
    Dec 24 '20 at 12:01
  • I am more concerned that he tries to force his license on works that might never have contained his software in the first place - for example, you can't force the same license Gimp is made under upon a picture that is made with Gimp.
    – Trish
    Dec 24 '20 at 12:12
  • 2
    Yeah, to be clear: I wouldn't recommend trying to write your own software license. I'd much sooner recommend something like CC BY-NC-SA.
    – Ryan M
    Dec 24 '20 at 12:14
  • @RyanM in most places you can write your own contracts - in some you must use a lawyer. Also, licences are contracts in common law but distinct creatures in civil law.
    – Dale M
    Dec 24 '20 at 19:54
2

Yes, everybody can write licenses. No, not everybody should. Ask a lawyer that is a specialist in this or use an already established license.

Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up

This clause might be null and void in many cases. A clause in a contract to acquire a tool that forces all your works to be licensed like the tool not only is morally very dubious, it also might make the contract unconscionable—the clause would qualify as a very unfair surprise.

An example: Blizzard had, in the re-release of Warcraft III, put a huge emphasis and statements out that made clear that they own any derivates, as possible, the ownership or license transfer that happens to mods to the game is by far not a surprise. Those clauses are a considerable amount of the contract that allows you to use the level editor.

In contrast, the suggested clause could hide in the EULA, thus it would be not only unenforceable, but it would also be unconscionable and might even void the contract as a whole—some countries don't allow the transfer of copyrights this way.

2
  • I see, what I was thinking about was a completely free and open source environment that cannot be turned to profit, or used to generate profit in any way. There are a lot of open source projects that build a userbase and recognition piggybacking on the fact that everything was opensource and free, and when they hit a certain "size", they start monetizing it. I find this very bad for the essence of the free and open source concept.
    – Mesos
    Dec 24 '20 at 14:01
  • Assume your software is a screwdriver. You use it to put screws into holes. But the screwed part contains not a single piece of the screwdriver. You put the screwdriver out on the street corner (with a chain so it stays there), with a license next to it. Your license demands that someone who fastened their bike's screws can't resell his bike anymore and has to put it on the street corner for anyone to use under your license. Someone uses the bike to deliver a newspaper he sells to his boss. Now your license demands that usepaper has to be under the license violating copyright on the paper.
    – Trish
    Dec 24 '20 at 14:08

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.