Source protection (in general)

[robertmee]

Owning something and having the right to copy it are two different things; indeed copyright law (and much of what is called 'intellectual property') is built upon just such a distinction.

Despite the title of 'intellectual property', copyright is not actually a property right.*

By your logic, if you go out and buy the latest bestseller you don't own that book, you are just licensed to read it (as that is the purpose for which the book was provided).


*in the US and in the English law from which it descends; I can't speak for other jurisdictions.

Not sure how that's even remotely a comparison. It's more akin to Microsoft Word. You don't own the software, you own the license to use it. But even with your book example, suppose you write a PLC training book and sell it to customer A. They photocopy it and distribute it to all their other facilities, other vendors they work with, etc. So, no, buying a book doesn't give you permission to do anything you want. You can read it, burn it, color in it, throw it away, but you cannot plagiarize its content or distribute it in anyway. Which goes back to copyright law.

So I'm in agreement about copyright protections, and a programmer automatically owns the copyright to said software. So that was my point about licensing. You don't own it in the strictest terms of being able to do what you want with it outside the purpose for which it was developed.

A quick and dirty read on software copyrights and licensing: https://www.10duke.com/resources/gl...Copyright is the most,the death of the author.

 

[Steve Bailey]

I'm not sure whether copyright law applies to software, but continuing the book analogy. When you produce a piece of printed work in the United States, you automatically own the copyright to it, but unless you register the work with the US Copyright Office you won't be able to make a claim against anyone who infringes on it. And no, mailing a copy to yourself does not constitute registering a copyright.

 

[robertmee]

I'm not sure whether copyright law applies to software, but continuing the book analogy. When you produce a piece of printed work in the United States, you automatically own the copyright to it, but unless you register the work with the US Copyright Office you won't be able to make a claim against anyone who infringes on it. And no, mailing a copy to yourself does not constitute registering a copyright.

It does....Courts so ruled in 1983: https://en.wikipedia.org/wiki/Software_copyright

This legislation, plus court decisions such as Apple v. Franklin in 1983 clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they "licensed" but did not sell their products, in order to avoid the transfer of rights to the end-user via the doctrine of first sale (see Step-Saver Data Systems, Inc. v. Wyse Technology). These software license agreements are often labeled as end-user license agreements (EULAs).

 

[plvlce]

Not sure how that's even remotely a comparison. It's more akin to Microsoft Word. You don't own the software, you own the license to use it. But even with your book example, suppose you write a PLC training book and sell it to customer A. They photocopy it and distribute it to all their other facilities, other vendors they work with, etc. So, no, buying a book doesn't give you permission to do anything you want. You can read it, burn it, color in it, throw it away, but you cannot plagiarize its content or distribute it in anyway.

I can do anything I want except that which the law specifically forbids, because I own it. The fact that my copying it would violate copyright law does not make me stop being the owner any more than the fact that my beating someone over the head with it would violate laws against assault.

Indeed your statement "you cannot plagiarize its content or distribute it in anyway" is essentially just a tautology because it implicitly means "you cannot (legally) plagiarize its content or distribute it in anyway" -- or in other words, "you cannot legally do [things which are against the law]." Breaking the law with something is illegal, regardless of whether you own the thing in question or not.

So I'm in agreement about copyright protections, and a programmer automatically owns the copyright to said software. So that was my point about licensing. You don't own it in the strictest terms of being able to do what you want with it outside the purpose for which it was developed.

If I have a CD with Microsoft Word on it, there's nothing Microsoft can do to stop me from using it as a support to level my coffee table, despite the fact it was designed for nothing of the sort. Obviously if I somehow get hurt they're not liable since I'm using it in a way completely detached from their design and expectations, but I can do it because it is my property and I can do what I want with it.

'Licensing' is a business model that attempts to circumvent the limitations of copyright law, and its use is somewhat orthogonal to copyright. To quote the very article you linked "You automatically own the copyright for any software you develop." (emphasis added). Not 'You own any software you develop'. What you have is a copyright, that is, the exclusive right to reproduce and distribute the program (which you can then extend to others, and with limitations such as the first sale doctrine). The specific copy of the program under discussion, however, you no longer own once you exercise that right by selling it.

And if you think that just because you 'license' that you aren't selling the program, then you'd better not be doing so in the EU because that's explicitly not been the case there since 2012. To quote the Advocate General:

Conversely, a computer program or a copy of such a program must be regarded as being sold ... where the transaction, however it may have been described by the parties, involves the transfer of ownership of a copy of the computer program, for an unlimited period of time, in return for the payment of a one-off fee.

(emphasis added)

The European Court of Justice agreed, holding quite clearly that the sale of a 'license' entails the sale of the copy of the program as well, and that a download is functionally the same as sale through a physical medium for these purposes.

In other words, if it looks like a sale, has the time period of a sale, and is charged like a sale… then it's a sale even if you call it a license. If you don't want it to be a sale, make it a subscription so it's time-limited and not a one-off fee (surprise surprise Rockwell is now pushing subscription as their licensing model).

For those who want further details, the case is C-128/11, UsedSoft v Oracle, where Oracle tried to sue UsedSoft for copyright violations because they were reselling licenses. The Bundesgerichtshof (Germany's highest court) asked the ECJ to weigh in on (in simple terms) whether a license holder downloading the program counted as the 'first sale' and if the license was then re-sold the new owner could then download it from the internet (assuming original owner has erased his copy).

As a result of the case it is now clear in EU law that software licenses and the accompanying program are indeed like eg books -- once sold they may be re-sold regardless of the license terms (ie if the license says otherwise that portion is illegal and thus unenforceable), with the caveat that multi-seat licenses cannot be broken up (eg if you buy 50 seats but only use 40, you can't re-sell the other 10).

For anyone who wants to wade through legalese, (it's not that bad as such things go) here is the ECJ judgment, and here is the Advocate General's Opinion from which I quoted.

We'll see whether the US courts follow suit. In theory they should because, again, copyright is explicitly not a property right in the US.

 

[plvlce]

It does....Courts so ruled in 1983: https://en.wikipedia.org/wiki/Software_copyright

Per the Copyright Office: "You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work."

Copyright infringement is still illegal, of course, and the government can prosecute (and specific laws may provide you with options such as DMCA takedowns), but if you want to see any damages (or if the prosecutor just doesn't feel like prosecuting for whatever reason) you'll have to register your work to take it into your own hands. Well, your lawyer's hands.

 

[robertmee]

I can do anything I want except that which the law specifically forbids, because I own it. The fact that my copying it would violate copyright law does not make me stop being the owner any more than the fact that my beating someone over the head with it would violate laws against assault.

Indeed your statement "you cannot plagiarize its content or distribute it in anyway" is essentially just a tautology because it implicitly means "you cannot (legally) plagiarize its content or distribute it in anyway" -- or in other words, "you cannot legally do [things which are against the law]." Breaking the law with something is illegal, regardless of whether you own the thing in question or not.

If I have a CD with Microsoft Word on it, there's nothing Microsoft can do to stop me from using it as a support to level my coffee table, despite the fact it was designed for nothing of the sort. Obviously if I somehow get hurt they're not liable since I'm using it in a way completely detached from their design and expectations, but I can do it because it is my property and I can do what I want with it.

'Licensing' is a business model that attempts to circumvent the limitations of copyright law, and its use is somewhat orthogonal to copyright. To quote the very article you linked "You automatically own the copyright for any software you develop." (emphasis added). Not 'You own any software you develop'. What you have is a copyright, that is, the exclusive right to reproduce and distribute the program (which you can then extend to others, and with limitations such as the first sale doctrine). The specific copy of the program under discussion, however, you no longer own once you exercise that right by selling it.

And if you think that just because you 'license' that you aren't selling the program, then you'd better not be doing so in the EU because that's explicitly not been the case there since 2012. To quote the Advocate General:

(emphasis added)

The European Court of Justice agreed, holding quite clearly that the sale of a 'license' entails the sale of the copy of the program as well, and that a download is functionally the same as sale through a physical medium for these purposes.

In other words, if it looks like a sale, has the time period of a sale, and is charged like a sale… then it's a sale even if you call it a license. If you don't want it to be a sale, make it a subscription so it's time-limited and not a one-off fee (surprise surprise Rockwell is now pushing subscription as their licensing model).

For those who want further details, the case is C-128/11, UsedSoft v Oracle, where Oracle tried to sue UsedSoft for copyright violations because they were reselling licenses. The Bundesgerichtshof (Germany's highest court) asked the ECJ to weigh in on (in simple terms) whether a license holder downloading the program counted as the 'first sale' and if the license was then re-sold the new owner could then download it from the internet (assuming original owner has erased his copy).

As a result of the case it is now clear in EU law that software licenses and the accompanying program are indeed like eg books -- once sold they may be re-sold regardless of the license terms (ie if the license says otherwise that portion is illegal and thus unenforceable), with the caveat that multi-seat licenses cannot be broken up (eg if you buy 50 seats but only use 40, you can't re-sell the other 10).

For anyone who wants to wade through legalese, (it's not that bad as such things go) here is the ECJ judgment, and here is the Advocate General's Opinion from which I quoted.

We'll see whether the US courts follow suit. In theory they should because, again, copyright is explicitly not a property right in the US.

That was a whole lot of words to say that distribution or copying of software an SI develops is licensed, copyrighted, and not permissible within the law to do so. In your arguments, you seem to focus on tangible representations of literary works. Propping a coffee table with a physical CD, or hitting someone with a physical book. These are strawman arguments, as there's no physical representation of the code developed and downloaded to a PLC. If a customer wants to burn that code to a CD and play Frisbee with it, that's obviously within their purview. But we are talking protection of intellectual property and ownership rights. Noone owns literary works but the author. You can own the physical container of a literary work (a CD, a book, a picture), but you do not own the content of those physical media, being the literary source, or software in this case. You can do what you want to the container as you've pointed out. But you cannot do what you want with the Contents under copyright laws. We are probably agreeing more than disagreeing, but not agreeing on the semantics of ownership.

 

[robertmee]

Per the Copyright Office: "You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work."

Copyright infringement is still illegal, of course, and the government can prosecute (and specific laws may provide you with options such as DMCA takedowns), but if you want to see any damages (or if the prosecutor just doesn't feel like prosecuting for whatever reason) you'll have to register your work to take it into your own hands. Well, your lawyer's hands.

In all honesty, it's more a deterrent than an actionable endeavor. I have enough work without pursuing litigation with customers because they've shared my code to competitors. But the model and explanation to customers that they hold a license to use the code, but dont own the code to distribute as they see fit, is usually understood and sufficient. But there are always the few that are willing to circumvent common courtesy, and the law, to save a buck.

 

[bill4807]

We hand everything over once it is paid in full.

 

[rQx]

An OEM can sell a machine at a certain price because they sell many and divide the development costs for all the units.

If you pay the OEM what the software development costed to start with, maybe you will get the code?

 

[cardosocea]

When we contracted with a European company to build an new production line, they about choked when I told them they could rip up the purchase order if they weren't planning to give us the PLC code. Their response was "we don't provide that to any of our customers".

There's always an element of leverage here... I've had the same spiel before and then pointed out to more than 100 machines that we were planning to upgrade to their model across the whole business and all of a sudden, lo and behold, the code is a deliverable. This is similar to what other vendors, like GE, did with their licensing having to be always online. I was in a meeting to upgrade iFix in a facility I worked and when told that, I just thanked them and told them the meeting was over and I'd be moving over to FTView or Ignition... guess what? All of a sudden GE licenses can be hosted offline as well. LOL

If you pay the OEM what the software development costed to start with, maybe you will get the code?

Sure thing, do I get a cut out of every machine you sell with any bits of that code in it?