Selling Free Windows Software: Jail Time?
No, you will not serve hard time simply for selling software that is free, but you can face serious legal trouble if you sell it in a way that violates its license or infringes copyright. The key is understanding what “free” means: freeware is copyrighted and its license usually forbids resale, while open-source software may allow resale under specific conditions. This article explains the legal risks, the difference between freeware and open source, and how to sell software legally.
What “Free” Actually Means
The word “free” in software has two distinct meanings: free as in price (freeware) and free as in freedom (open source). Freeware is copyrighted software that the author gives away at no cost, but all rights remain with the author. The license typically permits personal use only and explicitly prohibits copying, distributing, or selling the software. Open-source software, on the other hand, is distributed under licenses like the MIT, Apache, or GPL that grant users the freedom to use, modify, and redistribute the software, sometimes even for a fee.
When you sell software, you are exercising the right of distribution. If the license does not grant you that right, you are infringing copyright, which is a civil wrong and, in cases of willful infringement, a criminal offense. In the United States, criminal copyright infringement can lead to up to five years in prison for a first offense, but this is reserved for large-scale, willful violations, not a single copy sold on a forum.
Freeware vs. Open Source: The Critical Difference
Freeware licenses are restrictive. The author retains all rights, and you are only allowed to use the software as specified. Selling freeware copies is almost always a license violation. For example, if you download a free PDF reader and try to sell it on a CD, you are infringing copyright because the license does not grant you distribution rights.
Open-source licenses, however, explicitly grant distribution rights. The MIT and BSD licenses allow you to sell copies, provided you include the original copyright notice. The GPL also allows selling copies, but it requires that you make the source code available to your buyers and that you license your modifications under the same GPL. So, selling open-source software is legal, but you must comply with the license terms.
Real-World Examples of Legal Sales
Many companies legally sell open-source software. Red Hat sells a distribution of Linux (which is GPL-licensed) and charges for support and services. Canonical sells support for Ubuntu. These companies are not selling the software itself—they are selling the convenience, support, and branding. You can do the same: take open-source software, package it, add value (like documentation, installation scripts, or support), and sell the package. The software’s license must permit this, and you must follow its conditions.
How to Check a License
Before selling any software, read its license. Look for a file named LICENSE, COPYING, or README. Identify the license type:
- Freeware: Usually says “All rights reserved” or “For personal use only.” Do not sell it.
- Open source: Look for terms like “MIT,” “Apache 2.0,” “GPL,” or “BSD.” These allow distribution, but each has specific conditions.
- Public domain: No copyright, you can do anything, but this is rare.
If the license is unclear, contact the author. A quick email asking for permission to sell copies can protect you from legal action.
Common Mistakes and Misconceptions
A frequent misconception is that if software is free, you can do anything with it. That is false. Freeware is not abandonware; the author still holds copyright. Another mistake is assuming that open source means no copyright. It does have copyright, but the license grants you permissions. Also, many people think that giving software away for free on your website is safe—it is, if the license allows redistribution, but you must not charge for it unless the license permits.
Another common error is failing to include the original license text when redistributing. Open-source licenses often require that you include a copy of the license with the software. If you omit it, you are violating the license, even if you are not selling it.
Consequences of Selling Without Permission
If you sell freeware without permission, the copyright holder can sue you for copyright infringement. You may be liable for statutory damages up to $150,000 per work if the infringement is willful. In criminal cases, the government can prosecute you, but this is rare and typically reserved for large-scale piracy operations. For a small seller, the most likely outcome is a cease-and-desist letter or a civil lawsuit. You could also be banned from online marketplaces like eBay or Amazon for selling counterfeit goods.
How to Sell Software Legally
If you want to sell software, follow these steps:
- Identify software that is genuinely open source (check the license).
- Read the license terms carefully, especially any attribution or copyleft requirements.
- Add value: create a user guide, provide installation support, or bundle the software with other tools.
- Include the original license text and any copyright notices.
- If the license requires it, offer the source code to your buyers.
- Do not misrepresent the software as your own creation if it is not.
Alternatively, you can sell your own software. Write a program, choose a license, and sell it. That is completely legal and common.
Frequently Asked Questions
Can I sell freeware if I don’t charge much?
No. The price is irrelevant. If the license does not grant you distribution rights, selling it for even one cent is infringement. The only way to sell freeware is to get explicit written permission from the author.
Is it legal to sell open-source software on a CD?
Yes, as long as the license permits distribution (which most open-source licenses do) and you comply with the license terms, such as including the license text and providing source code if required. You can charge for the CD and the convenience, but you cannot restrict the buyer’s rights under the license.
What is the difference between freeware and shareware?
Freeware is completely free to use. Shareware is trial software that you can use for a limited time, after which you must pay to continue using it. Selling shareware without permission is also illegal.
Can I sell a modified version of open-source software?
Yes, if the license allows modifications. The GPL allows you to modify and sell, but you must release your modifications under the same GPL and provide the source code. The MIT license allows you to modify and sell under a different license, but you must keep the original copyright notice.
What happens if I get caught selling freeware?
You may receive a cease-and-desist letter, be sued for damages, or face criminal charges in severe cases. The copyright holder can also have your listings removed from online marketplaces. It is not worth the risk.
Can I sell software that is free but the author is dead?
Copyright lasts for many years after the author’s death (typically 70 years). The rights pass to the author’s heirs or estate, who can enforce them. Unless the software is in the public domain, you still need permission.
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