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Alliance Center for
Intellectual Property Rights


OPEN-SOURCE SOFTWARE AND THE RIGHTS INVOLVED IN IT

July 15, 2023

* Mr. Tapas Debnath

INTRODUCTION

In order to interact with computers, we have to interact with the system through software which can be broadly classified into two categories, namely open-source software and proprietary or closed source software. The closed source software or proprietary software is such a software whose source code are closed, and it possess the copyright of the owner who may be a creator of the program or the company or individual who has acquired it through the process of contract of service or contract for service. Therefore, the other programmers except the author who owns the copyright cannot modify or alter the source code of the software since this kind of proprietary software are made available without the source code or it can be said that it is available only with the object code readable only by the machine. Examples of most famous closed source software are Microsoft office, Adobe Acrobat, Skype, Adobe Flash player, etc. Whereas on the other hand, open-source software are those software having their source code open to everyone which makes the other programmer to have the liberty to modify or alter it without the consent of the creator of the software or the company or individual who owns the software. Some of the famous open-source software are Mozilla Firefox, Libre office, Gimp, VLC media player, Drupal, etc.

LICENSING SYSTEMS

A software license is a document designed to protect the intellectual property rights of the software developer or the author. Many people misunderstand open-source license software with the freeware license software since both are free to use but their commercial exploitation terms are very different from each other. Generally, the open-source license falls into two primary categories, namely, copyleft and permissive. Copyleft license is a license type in which code derived from the original open-source code inherits the same license terms, whereas the permissive license is license type which provides more freedom for reuse, modification and distribution and grants user to own a copyright on their own modifications. The prominent example of copyleft license would be GNU GPL whereas the Apache license and Berkley Software Distribution (BSD) license would be an epitome of a permissive license.

In closed source or proprietary source software, the owner, whether an individual or company of the software can be easily detectable, and its ownership is protected through intellectual property law. Due to which the indemnity or liability lie on that owner, if any loss happens to the user using the respective software. On the other hand, the open-source software is handled by the community, and it is the community who are making the requisite modification and alteration to meet the changing needs of time due to which there is no single owner in the open-source software, thereby calling it as a community driven software. As the Red Hat Inc., a prominent vendor of the open-source Linux operating system, warned their customers,

“We have not demonstrated the success of our open-source business model, which gives our customers the right freely to copy and distribute our software. No other company has built a successful open source business …. Open Source vendors are not able to provide industry standard warranties and indemnities for their products, since these products have been developed largely by independent parties over whom open-source vendors exercise no control or supervision.”

Therefore, it is very difficult to assert the liability on the vendors since they are not the owner of the open-source software, and since this kind of software is maintained through community therefore it becomes legally challengeable to recognize the intellectual property right and its infringement as well as the indemnity policy. On the other hand, the copyleft can be treated as a kind of intellectual property right and its infringement is explicitly mentioned in the GNU General Public License (GNU GPL),

“each time [Licensees] redistribute the program (or any work based on the program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the program subject to these terms and conditions.

…. [licensee] may not copy, modify, sublicense or distribute the program except as expressly provided under this license. Any attempt to otherwise copy, modify, sublicense or distribute the program is void, and will automatically terminate the rights under this license.”

The above terms and conditions are for GNU GPL license, and it should not be confused with the GNU Lesser General Public License which have different terms and conditions for copying, modifying, sublicensing or redistributing the program or in short it has a lesser copyleft regulation. Here, in this case too, the liability is not with the licensees to indemnify the user for their loss occurred in the course of using the copyleft software.

The above GNU GPL licensing terms can be well understood from the case study of Robert Jacobsen v. Matthew Katzer and Kamind Associates, Inc., where the claim of copyright and patent infringement under the open-source license was asserted by the Plaintiff before the U.S. Federal Circuit Court of Appeals. Even though in U.S. District Court held that license is only enforceable through the contract law and not under copyright law, the Federal Circuit of Appeal reversed the District Court order by holding that the open-source software licenses are enforceable under contract law as well as under the copyright law. The recent case of Google LLC v. Oracle America, Inc., where the U.S. Supreme Court laid down the precedent for fair use and derivative right in the open-source software. In 2005, Google after acquiring the Android Inc., negotiated with the Sun Microsystems to license Java technology but due to the condition of interoperability the deal went down, and Google elected to create its Android platform independently, thereby copied about 11,500 lines of code from Java Application Program Interface (API). In 2010, when Oracle acquired Sun Microsystems filed a suit against the Google for copyright and patent infringement, where the District Court held that Google had copied the unprotected method of operation under the Copyright Act. When the case was appealed before the Supreme Court, it held that Google’s copying of the Java SE API, included only those lines of code that were needed to allow the programmers to put their accrued talents to work in a new and transformative program, which was a fair use of that material as a matter of law. Therefore, from the above two cases, it can be observed that the Federal Circuit Court and U.S. Supreme Court has recognized the open-source license and its copyleft regulations by upholding that its infringement is equivalent to the copyright infringement.

CONCLUSION AND SUGGESTIONS

Looking at the pace of development in India, there is a huge probability that India is going to become a global technological giant in near future, and this would consequence in the huge usage of software (open-source or closed source) which would ultimately result into eruption of many kinds of dispute related to the open-source software and its licensing. Since all the facts and case studies abovementioned are from the U.S., and by considering our traditional copyright law, it will be difficult to try the cases related to the open-source software and the infringement of rights involved in it. Through the reference of abovementioned cases of Robert Jacobsen and Google, it is very important to know the difference between the two different open-source licensing systems i.e., copyleft license and the permissive license, if any dispute of open-source software arises. These differences of licensing terms will be helpful to decide on whether the infringement of any right occurred or not. Therefore, it will be very interesting to note, how the Indian judicial system cope-up with the new inevitable challenges and issues related to the open-source software and its licensing rights.

From the above, it can be concluded that our traditional Copyright Act needs remodeling to cope up with the new category of software and its licensing policies. The definitions of all types of software i.e., open-source software and proprietary software should be incorporated in parallel with the definition of computer programme which is defined under section 2 (ffc) of Copyright Act, 1957. The different licensing system operating in open-source software should be listed along with the meaning of copyleft under the definition clause of the Act. Section 13 and 14 should be amended to incorporate copyleft and the rights associated with it which can be substantiated from the GNU GPL and GNU Lesser GPL licensing terms. Section 51 of Act should recognize the infringement of copyleft licenses or permissive licenses equivalent to copyright infringement as it is recognized by the U.S. Supreme Court and Section 52 should incorporate the fair usage terms and conditions of the open-source software as per their different licensing system.

REFERENCES:

  1. Closed-source software (Proprietary software), Kaspersky IT Encyclopedia (Feb. 17, 2023, 1:48 PM) https://encyclopedia.kaspersky.com/glossary/closed-source.
  2. Open source software, Kaspersky IT Encyclopedia (Feb. 17, 2023, 2:05 PM) https://encyclopedia.kaspersky.com/glossary/open-source-software.
  3.  Open Source Licenses: Types and Comparison, snyk (Feb. 20, 2023, 11:38 AM) https://snyk.io/learn/open-source-licenses.
  4. David McGowan, Legal Implications of Open-Source Software, 2001 U. ILL. L. REV. 241, 250 (2001).
  5. Robert Jacobsen v. Matthew Katzer and Kamind Associates, Inc., 535 F 3d 1373 Fed. Cir. (2008).
  6. R. Michael Azzi, CPR: How Jacobsen v. Katzer Resuscitated the Open Source Movement, 2010 U. ILL. L. Rev. 1271, 1273 (2010).
  7. Google LLC v. Oracle America, Inc., 141 S. Ct. 1183 (2021).
  8. Copyright Act of 1976 – Intellectual Property – Fair Use – Google LLC v. Oracle America, Inc, 135 HARV. L. REV. 431, 432 (2021).
  9. Ramesh Natarajan, India can become a global technology powerhouse by 2030, Economic Times (Feb. 25, 2023, 10:00 AM) https://cio.economictimes.indiatimes.com/news/business-analytics/india-can-become-a-global-technology-powerhouse-by-2030/95440019.
Author:

* Mr. Tapas Debnath
BE, LLB, LLM
Advocate, Bombay High Court.

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights(ACIPR) and the Centre does not assume any responsibility or liability for the same.