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price of software [was Re: [ox-en] Book project]



On Sun, 19 Jan 2003, MJ Ray wrote:

Indeed, if you wish to be accurate in that way, all software is gratis and
the copyright licensing is not.  That just means that saying "free software
is gratis" as if it is something different is a little sly, I think.  No?

Why is it sly? if you don't have to pay any licensing fees to use it,
doesn't that make it gratis? I haven't paid a penny for any of the 
software on my computer, quite legally, so how is it not gratis?

But I think the bigger argument was whether cases like your company
selling a free program means there is no general rule about whether free
software is always gratis.

Mainly to get things clear in my own mind, I'll have another go. This is a
continuation of a previous discussion over whether software has value (in
the sense of Marx or Smith), but now in terms of price. I'm taking 'price'
to mean what you pay when you buy something.

'Intellectual property' of all kinds traditionally has a distinction
between 'the work' and 'embodiments of the work'. Eg, a book and a printed
copy of the book. If the 'IP' is electronically copyable, the physical
distinction between the work and its embodiment becomes unimportant, but
the concept is still there.

Rights over a work can be sold. Since by definition each work is unique, 
the rights do not have a market price like say a loaf of bread, but they 
do have an effective one-off price. But if you sell the rights, you also
sell any control you have over the license - so software for which you
sell the rights is neither 'free' nor 'unfree'; it's in a kind of limbo
till the new owner decides what license to use.

In that sense, all software has a price, but at a point where you can't
distinguish between free and unfree software.

Alternatively, you can be paid for creating the work: eg, if you do
the work for someone else who needs the program but is happy for you to
retain copyright (which means whatever license you put on it stays).
I wouldn't really call that a price, though, more like a fee. Similarly
if someone pays you to modify an existing free program, in which case
the original copyright holder keeps the rights but you can be paid a fee.

Now for the embodiment of the work. If it's electronically copiable,
no-one really sells it, and it has no price. The first thing many EULAs
say is something like 'You have not bought this program. You have paid for
the right to use it in certain limited ways, which are...'. With
commercial software you pay money to get the rights listed in the license,
you do not buy the software.
Put like that, most everyone would say 'why bother - I'll just get my
own copy'. So commercial software companies present making you pay for
a license as if it were paying for the software, so people say things
like 'I've just bought Word' etc. Or they put a CD in a big empty box
so it feels like buying something physical. But you haven't really, or
you would have all the rights over it you have when you pay for normal 
goods. So my argument is that for commercial software users software has 
no price - but the license rights have a cost. 

Free software by definition has a license that doesn't restrict your
rights, including the right to copy it without charge. So free software as
embodiment doesn't even have a license cost - for end users it must be
completely gratis. But free software licenses can't (and would want to)
stop the supplier from charging for services that go along with it, so if
you want to pay money to RedHat for the support that goes along with the
free software they supply, fine. But you don't pay a price for the
software, but for the support.

Doesn't that justify saying 'free software is not only livre but
gratis'? Maybe not if you're trying to convince your boss it's financially
worth his while to produce a free program, I suppose.. And maybe if 
people read 'gratis' as 'no price' it helps to reinforce people's 
mistaken idea that they 'buy' software. How about 'free software is livre 
and has no licensing costs'? Not the world's catchiest slogan :-(

Cheers
Graham

 

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