Law in the Internet Society
-- SunYoungJang - 20 Nov 2008

Proprietary Software v. Free Software


In this Note, I’d like to understand arguments of proprietary software supporters and free software supporters and think about future or result of such dispute as a lay person who does not have much knowledge in information technol-ogy but enjoys benefit of the technology, so called a pure consumer or free rider.

Proprietary Software Model v. Free Software Model

Proprietary software and free software are different in following points.


Proprietary software supporters assert that authors deserve the right to proprietize their works and not to have his or her creative work enjoyed without payment or permission. They believe that innovation primarily happens with finan-cial incentive and favors ensuring such incentive by granting exclusive rights to authors.

Free software model supporters believe that it is unfair some members of society possessing a benefit (i.e. an access to knowledge) that cannot legally be shared, even though there are no logistical or technical barriers to its immediate enjoyment by all. Therefore, they assert that software simply ought to be free as an ethical matter. Further, they believe that innovation happens when a free access to source code is allowed for voluntary contributors, while it would decline to the extent that software authors desire money and are relying upon exclusivity to generate income.


The typical mode of development for proprietary software revolves around a firm and those software developers or other firms in specific privity to it. Software is conceived of, written, and tested in-house, and the firm takes some re-sponsibility for user support and upgrades, all typically in response to market pressures and influences. On the other hand, free software takes “open” mode of development which is made by academic computer science and amateur tinkering circles (in the sense of one who undertakes something more out of love or fascination than pro-fessional duty). Open development emphasizes collaborative work even among strangers and across or even entirely outside of the boundaries of firms, with users of a piece of software themselves contributing changes and improvements to the larger project over time. These improvements are often not made in response to others’ requests, but rather in order to make the software more usable to the person making the changes.


Proprietary software is distributed with its source code hidden from view as a technical matter, and as a legal mat-ter it cannot be used by independent programmers to develop new software without the rarely given permission of its unitary rights holder. It provides cash-and-carry functionality for the end-user. On the other hand, free software is distributed with its source code open to public view and use and it is further “copylefted”, that is, copyrighted for the purpose of incorporating license restrictions designed to ensure that anyone who uses and releases the copylefted code as a component of new software must also release that new software under copyleft’s otherwise-permissive terms. One can charge for a particular copy of free software so long as the source is provided and a specific bundle of rights is delivered with the software--such as the right to further copy it.


As noted above, proprietary software can be improved by authors who have exclusive right or third parties who were granted with license from the author, while free software is improved by anybody.


The proprietary model asserts that consumers pay exactly for the level of reliability that they want and that can be cost-effectively delivered to them. On the other hand, the free model argues that “peer-reviewed” software--such as col-laboratively developed free software in which the source code is viewable, testable, and changeable by all--is more re-liable, on the general theory that many disparate eyes can catch more mistakes under more circumstances.

Enforcement and Legal Vulnerability

Proprietary software relies on the existence and enforcement of prevailing copyright law. Proprietary software in mass distribution reserves all rights to the author except a license to run the software on the purchaser’s computer. Thus, without the original author’s permission, consumer changes would constitute infringement of copyright and be subject to a claim seeking an injunctive order and damages. On the other hand, free software makes its source code freely available and prohibits proprietization of any deriva-tive works. However, they also rely on judicial system to prevent proprietization, but the remedy would be likely an order not to proprietize rather than to pay damages. Free software model is more likely to be subject to infringement claim because of its anonymous collaborative de-velopment process and open source code. In this connection, free software supporters argue that proprietary software model, which treats essentially indistinguishable things differently by legal categorization (patent, copyright, trade se-cret or none of these), will give rise to endless disputes.

Review of Each Model

Philosophy, Development and Improvement

In terms of philosophy, free software model seems ideal, more democratic and by far respectful in that it focuses on benefits to all and voluntary common creation rather than on monopolistic benefits of a few elite inventors. It could be called as a social movement based on zero marginal cost economy against monopoly of power through proprietization of knowledge.

In terms of development and improvement, assuming that everyone has ability, time and will to participate in and contribute to creation of common assets sounds too na´ve, just like assuming everyone would be motivated by proprie-tary right and economic benefits only is too extreme. However, considering that defects or modification needs can be better spotted by various users in day-to-day use and there could be lots of people on the net who can and want to im-prove software and contribute to public for self-esteem, reputation or whatever, I agree with free software model on that innovation can more actively and efficiently happen when access to source code and right to modify is guaranteed than when source code is not opened and modification is exclusively reserved to closed hierarchical firms. Sticking to pro-prietary right at the expense of rich resources available in the net seems tremendously absurd and undesirable from so-cial benefit and development perspective. In this connection, free software movement so far seems to have succeeded in persuading this point in part at least it caused certain software companies to open their sources to some extent.

Use and Distribution

In practice, restriction imposed by the proprietary model may not bar many lay person users from desired activity; non-programmers will evaluate a software purchase on the basis of the program’s functionality rather than on its use as a base in producing other software.

With regard to distribution, people purchase personal computers usually installed with proprietary software and proprietary software makers are very active in promoting their products worldwide. Lay people may not even know about existence of free software and would not want to learn about it at all if it takes much time and effort to replace their ready installed software with it. In this connection, free software needs to get more attention from public all over the world and enlighten them by closely liaising with personal computer makers etc.

Reliability and Stability

On reliability issue, further empirical approach seems relevant. However, people may blindly think that proprietary software is more reliable because they paid for it and may expect that one developer who has proprietary right on the software would act more responsibly than many dispersed developers who do not have proprietary rights. With regard to stability, because of legal vulnerability of free software, users may feel that free software is some-what unstable and rest with proprietary software even if their “fear, uncertainty and doubt” is taken advantage of.


So long as free software aims to share and develop knowledge between people as many as possible and it needs to defend against infringement claims raised by proprietary software supporters and also resorts to legal relief to enforce its philosophy, i.e. prohibition of proprietization, it needs to actively enlighten and motivate lay person users as well as programmers.


Jonathan Zittrain, Normative Principles for Evaluating Free and Proprietary Software, 71 U. Chi. L. Rev. 265 Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, First Monday, August 1999

This is a peculiar essay. It tells me what some people think about a question. It produces no facts, making it impossible to judge whether these "thoughts" have any relation to reality. It says it is about an issue from the perspective of a user of software, but it doesn't report anything about using software, certainly not about using free software. It concludes that people who believe in free software should teach people about their beliefs. I have been doing so, and one person I've been teaching is you. But the essay cites something I wrote almost ten years ago, and says nothing about anything that has happened in any user's experience in the intervening decade. In particular, it says nothing about how users experience the difference between consumer electronic devices built on free software and devices built on proprietary software. It says nothing about how devices are built in their hundreds of millions on free software. Or about why I said that would happen in other things I wrote nearly ten years ago, and whether what I said was right.

In short, I don't think the essay does what it says it will do because it isn't in touch with the contemporary facts you are supposed to have been learning about.


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r2 - 30 Nov 2008 - 15:59:23 - EbenMoglen
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