OPEN SOURCE SOFTWARE: EVOLUTION OF INTELLECTUAL PROPERTY RIGHTS

FROM COPYRIGHT TO COPYLEFT

Abstract

“The proprietorship gives the technology its existence

The Open Source gives it its value”

The community – developed software movement, also known as the open source community,
derives its identity from the notion that companies or ad hoc communities should make available
online the source code – the underlying programming instructions that make piece of software
work-and then let anyone who has something to contribute improve it and let millions of others
just download it for their own use. The committees fostering the open source movement tend to
develop on the same lines but are divided into two factions, namely the intellectual commons
community and the other being the free software community. The former faction basically
advocates that anyone may use the source code as the foundation for a commercial product, the
only condition being that such users should acknowledge the original developers, wherein in the
later faction advocates that if you build and distribute any derivative product on the shoulders of
community –developed free software code , you need to contribute your innovation back to the
community as well , which means that you need to make product free. It has been hailed as a
panacea for the ills of the technology industry, and damned as a frontal attack on free enterprise
which tends to monopolize the technology market. The open source movement has become a
powerful flattener in the globalised world bridging the distance between nations.
DEVELOPMENT OF OPEN SOURCE CULTURE: FROM NOWHERE TO EVERYWHERE
The free/ open source software movement began in the hacker culture of U.S Computer science
laboratories.1 At that time the community of programmers were small and close knit, .if
somebody made an improvement, one was expected to submit its code to the community of
developers. The free software movement however was and remains inspired by the ethical ideal
that software should be free and available to all, and it relies on open source collaboration to help
produce the best software possible to be distributed for free. The primary goal of the free
software movement is to get as many people as possible writing, improving and distributing for
free, out of conviction that this will empower everyone and free individuals from the grip of
global corporations.2

THE SUCCESS OF APACHE & LINUX -GLARING EXAMPLES OF THE PRESENCE OF OPEN SOURCE
CULTURE
Richard Stallman ,3 an MIT researcher and ex-hacker who launched the free software movement
along with an effort to build a free operating system called GNU , he also founded the free
software foundation and also launched the GNU General Public License (GPL).The GPL
specified that users of the source code could copy, change , or upgrade the code .The building of
Apache4 the first virtual, online, bottom-up software factory, which no one owned and no one
supervised is one of the finest example of open source software development . Soon after its
inception , software giants such as IBM became more then willing to attach themselves with this
free web browser.5 In 1991 the Linux6 operating system was posted to compete with the
Microsoft’s windows , whose license mentioned that anyone can download the source code and
improve upon it but then must make the upgraded version freely available to everybody else .
The General public license under which the Linux code , and other free software , is written and
distributed requires that if you combine new code with Linux and redistribute it , then you are

1
THOMAS L. FRIEDMAN, THE WORLD IS FLAT 98(Penguin books)(2009);The Open Source Initiative: Home Page, at
http:// www.opensource.org (last visited September 4, 2009).
2
Id.,
3
Richard Stallman, The GNU Operating System and the Free Software Movement, in Open Sources: Voices from
the Open Source Revolution.
4
See The Apache Software Foundation, at http:// www.apache.org/foundation/faq.html (last visited Aug31, 2009).
5
Id., IBM in collaboration with Apache launched an web server called as ‘websphere’.
6
See The Linux Home Page at Linux Online, at http://www.linux.org (last visited September 3, 2009).
obligate d to make the modified or combined work available to the community for fr

WORKING OF THE OPEN SOURCE CULTURE – THROUGH A PEER REVIEW WAY

The software development involves a source code repository which is managed by tools such as
the Concurrent Versions System,7 The developer with the help of a CVS programme can connect
with the server and pull down the copy of the source code to start making modifications .After
making the modifications the developer with the help of a programme called ‘Patch’8 can create
a new file which infact is a compact collection of all changes. The new file thus created is called
a ‘Patch File’. The developer can further distribute his Patch file to others or in case if he is
authorized, he can commit the Patch file to the repository code, the file gets e-mailed to all other
developers. The peer review from other developers guides him to fix the problems, if any.

THE OPEN SOURCE COMMUNITY-INDUCING THE GROWTH OF COPYLEFT

The method used to prevent open source software’s from being turned into proprietary software
is called “copyleft”.9 Copyleft uses copyright law, but flips it over to serve the opposite of its
usual purpose: instead of a means of privatizing software, it becomes a means of keeping
10
software free. The central idea of copyleft is that we give everyone permission to run the
program, copy the program, modify the program, and distribute modified versions—but not
permission to add restrictions of their own. For an effective copyleft, modified versions must
also be free. The requirement that changes must be free is essential to ensure freedom for every
user of the program. A crucial requirement for copyleft is to anything added to or combined with
a copylefted program must be such that the larger combined version is also free and copylefted.11

Open source community faced severe criticism from the traditional software leaders for many
reasons that - negativing the above obstacles as propounded by the advocates of capitalism , the
open source community relied upon its widespread acclaim and usage ,owing the success
achieved by the Apache, Linux ,Mozilla, etc .The attachment of the venture Capitalist funding to
the open source startups –paying software companies to put out some programme for free in the

7
http://www.nongnu.org/cvs/(last visited : 8’th September, 2009)
8
Id.,
9
Supra Note 1
10
Id.,
11
http://www.gnu.org/gnu/thegnuproject.html
hope that a community will soon develop around it as evident in the case of funding by the Red
Hat which supports the development of Linux and other open source solutions.12

OPEN SOURCE LICENSING- ENUMERATING CRITERIA’S AS PRE-REQUISITES OF A VALID OPEN SOURCE

LICENSE
The open source movement was eventually organized into an entity called the Open Source
13
Initiative ("OSI"). OSI has published a definition enumerating the elements required for a
software license to qualify as an open source license. 14An agreement merely licensing source
code on a confidential basis is not an open source license, for instance. The OSI open source
definition has 9 criteria:

1. The license must permit anyone to further distribute the open source software for free as a
component of an aggregate software distribution containing programs from several different
sources.

2. The open source software must be made available in source code form and must be freely
distributable in source code form. This enables others to gain access to the source code, in
contrast to the proprietary software model.

3. The license must allow modifications to the source code, and allow redistribution of the
modified software under the same terms as the original open source software.

4. The license may restrict redistribution of modified software, however, as long as it permits
distribution of the modifications themselves in source code form. This enables the initial code
base to remain in its pristine state, so the community can see what modifications are available or
proposed.

5. The license must not discriminate against any person or group.

12
http://www.redhat.com/promo/rhel/?intcmp=70160000000HyuGAAS(last visited, 21st September, 2009)
13
Supra Note 1
14
Id.,
 6. The license may not restrict the use of the code to a particular field of use. Thus, it cannot
restrict use of the code for educational purposes only, for instance.

7. The licensed rights must apply to all to whom the program is redistributed without the need
for execution of an additional license. This prevents indirect means of making openly available
source code less open, such as by requiring a separate non-disclosure agreement.

8. The licensed rights must not be dependent on using the software only as part of a larger work
with which it is initially obtained.

9. The license must not restrict other software that is distributed along with the licensed
software. For example, the license must not require that all other programs distributed on the
same CD-ROM must also be open-source software.

IS COPYLEFT – A WELFARE MODIFICATION OF COPYRIGHT ?

Critics of copyright argue that it seeks to monopolize knowledge. The purpose for granting
copyright privileges is to further science and the useful arts In other words, the benefits of
copyright law should flow to society, and not strictly to the author. The proprietary software
model restricts users from altering or copying software as the source code is not provided along
with the software. As such, software developers have to work in a vacuum, unable to avoid the
mistakes others have made before them. This model only benefits the software developer who
comes out on top. This author maintains that software copyrights should be construed in a way
that increases the returns flowing to society. If software developers could have the opportunity to
build on each other's ideas, rather than duplicate each other's efforts, the benefits would return to
society, and not just to the developer. The "economic goal of copyright law is to balance an
author's incentive to create with his or her ability to build on prior work in order to maximize
social wealth."15 Open source allows reuse, but it does so only by foregoing some benefits of
copyright law. The Copyleft’s popularity also rests on the fact that since users have access to the

15
Michael Risch, How Can Whelan v. Jaslow and Lotus v. Borland Both Be Right? Reexamining the Economics of
Computer Software Reuse, 17 J. Marshall J. Computer & Info. L. 511 (1999)
computer source code they have the ability to modify and alter it.

A copyleft licence typically includes a clause that forbids users restricting its availability.16 The
licence asserts copyright over the software. Use of the software is subject to the terms of the
licence.17 The licence thus protects the integrity and continued availability of the software. In
fact, without copyright, copyleft and the open source movement could not exist as it does. 18 It
would not be able to rely on the lever of the licence and the existence of proprietary rights in the
software. The licence is a mechanism of policing. The Free Software Foundation is responsible
for the licence, entitled the general public licence. Most copyleft works are subject to this
licence. Therefore copyright, contrary to claims made by copyleft enthusiasts, does exist in
copyleft works and is acknowledged by the existence of and the terms of the licence. The
preamble to the General Public Licence notes that software is generally "designed to take away
freedom to share and change it. By contrast the General Public Licences are intended to
guarantee your freedom to share and change free software ... to make sure the software is free to
all users". The Free Software Association is a registered charity and also raises finance for the
development of new copyleft projects. It is ironic that, while copyleft is a threat to the software
houses, it is effective only when embracing the use of copyright.

CONCLUSION
16
Supra Note 14
17
Id.,
18
Id.,
The commercial success of Linux, Apache, and other open source projects has occurred despite
the fact that there are substantial legal uncertainties about the validity of open source licenses in
general and specific license provisions in particular. Also uniform code governing software
transactions could help to create more certainty and legitimacy with regard to open source
licenses, thereby promoting the open source movement. This concept neglects to award the
individual programmers for the risk and effort invested. Copyleft does not address the issue of
incentive to create computer works. Thus the open source culture provides for relief from the
monopolization of the software industry in few hands and involving public at large as
contributors, but lacks a proper regulatory mechanism to effectuate its working properly.