Dominion
Over Property
Software isn't
free
, as in the expression "the birds are free to fly." Software is someone's property, and you can't use another person's property ”to fly or to do anything else ”without that owner's permission.
And so this explanation of the law relating to software freedom actually starts with the other side of the coin, property rights.
Most people think of property as something tangible, discernible by touch. We exercise dominion over
tangible
land and call it our
real property
. We put personal things on our land and call that tangible stuff our
personal property
. We expect to have wide-
ranging
rights to use our property for our own benefit and enjoyment, with minimal interference from others. We assert that we
own
our property, and we often have the deeds or purchase receipts to
prove
it. We believe we have the right to prevent others from trespassing upon or taking our property.
In common usage, we also treat computer software as tangible personal property. We go to stores to
buy
software and pay for it with the same credit card we use to buy mouse pads in the
next
aisle. We take our new software home, put it in our computer, and it does our bidding.
But this concept of software as personal property is incomplete. There is much more to software than the disk it comes on. As one California
court
wrote in 1948, property is a very broad concept that includes not only the tangible but also "every intangible benefit and prerogative susceptible of possession or disposition." Computer software is this kind of intangible property because, under the law, it comes with specific but intangible benefits and
prerogatives
that can be separately owned and disposed of.
Software is a product of human intellect, and therefore it is a kind of
intellectual property
. Intellectual property is a
valuable
property
interest, and the law allows its owner to possess and control it. The programmer who
writes
software ”or the company that hires that person to write software ”is deemed to be the first owner of intellectual property embodied in that software. That owner may exercise dominion over that intellectual property. He can give it away, sell it, or license others to use it. That owner has the prerogative to create copies of the intellectual property, and he or she may prevent others from making, using, or selling those copies.
Because of these partly tangible and partly intangible aspects of computer software, it is possible to have different
owners
own (1) a tangible copy of software purchased at a computer store or downloaded from a website, and (2) the intellectual property embodied in that software.
Never confuse these two aspects of intellectual property, for the laws apply differently to each.
In most respects, intellectual property law is very different from the law of both real and tangible personal property but, in at least one respect, the laws are similar. An owner of any form of real or personal property, including intellectual property, may sell or gift it, dispose of it upon his death by will or trust, or have it taken from him by a bankruptcy court. I will discuss the effects on
open
source software of the laws of disposition of property at the appropriate places in this book.
The first task, however, is to identify the varieties of intellectual property that can be embodied in software. That will help explain why the owners of intellectual property in software do not have unlimited rights to its exploitation and use, but they often have enough rights to protect their property from unauthorized exploitation by others.
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