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Total Number of Subscribers: 426 |
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Date: 20 June 2008 |
Compiled by Mr. M. Sathya Kumar |
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‘Free Software’ – Myth or Reality!! The functions performed by a computer
program depend on its ‘source code’ (‘code’). The code is an integral
part of a computer program and is, therefore, heavily protected. He who
possesses the code controls the software, and thus software companies spend
fortunes trying to protect the code, so as to restrict other programmers from
modifying such software, which would otherwise decrease the economic value of
the software. Such software, wherein users/licensees do not have access to
the code, is referred to as ‘closed source software’. Owners of such software rely on the protection afforded by
intellectual property statutes for protection of the same. Radically opposed to this concept of ‘closed source software’ is a school of thought, the
followers of which believe in promoting development of technology by making
the code freely available to the public, thereby allowing them to read,
modify and share such code, and thus facilitate the development of a
customised product to meet specialized needs of the users. Such software is
referred to as ‘open source software’ (‘OSS’). It is pertinent to mention that there is no
legislation in India which regulates the use and distribution of OSS.
However, various institutions/groups have prescribed certain guidelines for
the use and distribution of OSS, so as to maintain the concept of free
distribution, and avoid commercialization of such software. It is ironic that although OSS aims to
freely allow copying, modification or distribution of OSS, the method by
which this is ensured, is by utilizing intellectual property licensing to ‘regulate’ how the code is handled in ‘cyberspace’! In order for a program to be classified as
OSS, the Free Software Foundation (a popular institution promoting OSS) has
prescribed certain guidelines under the GNU General Public License (GPL).
These guidelines mentioned in the GPL may be applied to the OSS by attaching
a notice to the OSS specifying these terms, which must broadly comply with
the criteria mentioned hereunder.
This clause emphasizes the fact that in
order to enforce the conditions mentioned above it is necessary to bind the
licensee contractually by means of a click wrap agreement, which although
held to be enforceable in the United States (Specht v. Netscape
Communications Corp., October 1, 2002; I.Lan Systems, Inc. v. Netscout
Service Level Corp., January 2, 2002) has not yet come up for discussion in
the Indian Courts.
The concept of OSS signifies "free as
in free speech, not as in free beer" (Richard Stallman, developer of the
GPL) necessarily implying that the concept of OSS does not mean ‘zero direct cost’ but signifies ‘freedom from constraints’. The aforementioned
condition also makes it evident that the licensee is not allowed to claim
proprietary interest or charge any license fee for distribution of the OSS.
Thus the OSS could be distributed from
programmer to programmer and modified according to their needs on the
condition that such improvements must be freely distributed without any
attempt to privatise the original OSS.
The rights attached to the OSS must apply to
all persons to whom the program is redistributed without the need for
execution of an additional license by them, i.e. the terms and conditions of
the OSS are effectively attached to the software and cannot be severed from
the code. Thus even though the license allows licensees to modify the code,
the modified files when redistributed must carry prominent notices carrying
the details of the modified files alongwith the date of such modification.
This information allows persons accessing the code to form opinions about the
programmer’s skills and allows programmers to develop their
reputation. Further, such a clause assists in preventing licensees from
closing software by indirect means, such as requiring a non-disclosure
agreement, etc. Bruce Perens, the author of the first draft of the Open Source
Definition (available at http://opensource.org/licenses/osl.php) also
prescribes certain guidelines for use of OSS, which are worth mentioning when
dealing with the terms of distribution of an OSS.
This condition makes it evident that any
person making modifications to the original OSS would be entitled to all
intellectual property rights in the modified portion of the original OSS.
It is necessary to understand that, the
license grants various rights to the licensee rather than restricting him,
hence a few restrictive terms in the license cannot render the whole of the
license ‘unconscionable’.
Although, the software is provided on an ‘AS IS’ basis, a person could offer warranty or maintenance services for the
OSS and charge for the same. It is evident from an analysis of the various conditions of the
license that, such conditions are aimed at preventing those outside the open
source movement from succeeding in ‘closing’ open
code, i.e. restricting ‘licensees’ from claiming intellectual
property rights over what is freely available code. Further, if the modified OSS is a work itself based on an
original OSS, the distribution of such modified OSS must necessarily be on
the terms and conditions imposed by the license and there may not be any
attempt to control the distribution of derivative works based on the original
OSS. However, the distribution of identifiable sections of the modified work
which are not derived from the original OSS, and which are considered to be
an independent and separate work in itself, are not bound by the terms and
conditions of the license and are capable of commercialization by the
programmer independent of the original OSS. Thus, the intent of the Open
Source license is not to claim rights of persons who are developing a program
through their own skills and intellect, but to control the distribution of
derivative works based on the original OSS. As the OSS is freely available, companies need to be cautious in
their approach of allowing their employees to use such software, so as to
reduce the scope of erroneous use of such software. They need to take steps
to restrict the use of OSS through documented policies and agreements and
educate their employees through trainings and lectures about the various
implications arising from such OSS. The first OSS litigation has commenced in the USA, where a
lawsuit has been filed by the SCO group against IBM on March 6, 2003 wherein
the plaintiffs allege that IBM misappropriated SCO's UNIX operating system
trade secrets by disclosing those trade secrets in the Linux operating system
and sharing them with the open-source community. Recently in India, a ‘public interest litigation’ has been filed in the Jharkhand High Court, wherein it has been prayed
that the Government of India and the State of Jharkhand be directed to
implement OSS, which is cheaper instead of the more expensive closed source
software. Although the outcome of the aforementioned litigations are not
known, they definitely promise to go a long way in the development of the
open source movement in India. Thus, before use and/or commercialization of any OSS, it is
important to understand and appreciate the implications arising from such OSS
to safeguard or further business potential, as the case may be. Article
by Yashojit Mitra and Tushar Ajinkya
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