What is licensing?

Bear with me, it may take a minute to set this up right.

Last week on IP Draughts, Mark Anderson asked the question, aren't licenses essentially covenants not to sue?

Rodin thinker close upHe approached his inquiry in a provocative way, the better to tease out how "license," as a term, might have denotations or connotations that could not be captured by the contractual promise, "I will not to sue you over your use of my software."

That's the perspective of the legal craftsperson, one who wants to find the tools to properly outfit a contract for the job at hand.

Leap over to Fred Wilson's blog this morning, where a discussion is ongoing in the comments over whether a subscription model is really just a form of license model, subscriptions being merely the business terms for hosted application licenses.

The consensus of Fred's community is that, for licensor and licensee alike, pay-as-you-go models are vastly superior to enterprise and other up-front license models; but a "subscription" remains a kind of license.

I buy it, though the contract drafter in me wonders if consistent use of the term "subscription" may end up making a legal difference. Just as "license" may resonate with more meaning than a covenant not to sue.

To the extent that "subscriptions" are eventually expressed more like "terms of service," or the rent of a seat to get from A to B (to use commercial airline travel as a metaphor), might there be fewer property-like rights entwined in a subscription relationship? Arguably, "license" carries connotations that go deeper than a contract right, almost as though a licensee has an IP interest (delimited by the scope of the license, to be sure) in the software itself, not simply the use of it. 

Photo of Rodin statue: Todd Martin / Flickr.

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