ASSIGNMENT-1

TOPIC: COPYRIGHT IN OPEN SOURCE SOFTWARE

Submitted by:
Kriti Khare
BA0140029

INTRODUCTION

Open Source1 software has recently captured the public attention both because of the
attractiveness and growing market share of programs developed under the Open Source model
and because of its unique approach to software licensing and community-based programming.
The description of Open Source software as “free” and the free price of some of the software
undoubtedly attracted other attention. The Open Source movement reflects the intent of its
founders to turn traditional notions of copyright, software licensing, distribution, development
and even ownership on their heads, even to the point of creating the term “copyleft” to describe
the alternative approach to these issues. Open Source software plays a significant role in the
infrastructure of the Internet and Open Source programs such as Linux, Apache, and BIND are
commonly used tools in the Internet and business systems.2

The term ‘Open Source Software’ to a computer program developed in an “open” manner in
which the source code3 is widely available for review and alteration by any developer as they
desire, that is distributed along with the license and users of the program are required to comply
with the provisions of license. In contrast, the source code of “closed source” software is not
publicly distributed and subject to alteration only by the software manufacturer. OSS (also
known, with somewhat different connotations, as free software or open code) differs in two key
respects from most proprietary software. First, the holder of the source code of OSS is free to
create, modify, and distribute the code to anyone. Second, to enable the foregoing, OSS is
1
“Open Source, as used in this Article, refers generically to an approach to software development with unique
licensing arrangements and a community-based method of programming. http://whatis.techtarget.com/ .
2
“Linux is a well-known and widely used Open Source operating system. Apache is Open Source web server
software used on over half of the web servers on the Internet. BIND is an important infrastructure component of the
Internet that translates URLs, such as www.domainname.com, into IP addresses.”
3
“Source code” is a set of programming instructions that is typically written in a “high-level” language, such as C or
Pascal that resembles the English language.”
distributed with access to the source code, not just the executable code version. One of the best
known examples of OSS is Linux, which runs many Internet servers and is the supreme
competitor of Windows, which is proprietary software. Few more OSS is Netscape Navigator,
Apache, Send mail. A fundamental tenet of OSS is that the licensee must get both the access to
source code and, more important, the right to make changes to the source code to correct defects
and bugs customize programs or add features as the licensee deems appropriate.

Due to some reasons a layman might believe that Open Source is an anti-intellectual property
right. Even economists considered OSS as a form of a public good as it is distributed for free.
This is due to confusing terminology. OSS was initially baptized ‘free software’, a name that
suggests to a common person that the software is for gratis. Another word ‘‘copyleft’’ (a word
play on the concept of being the opposite of copyright) resembles that the Open Source is anti
intellectual property rights whereas it actually rejects and opposes the usual use of copyright for
an exclusion purpose.

EVOLUTION OF OPEN SOURCE LICENSES

The Open Source software has got its lead primarily through three threads in the history of Open
Source movement which revolves around, GNU General Public License (GPL), BSD family of
licenses and Mozilla Public License.

A. GNU GENERAL PUBLIC LICENSE

In 1984, Richard Stallman, a researcher at MIT, became disenchanted with his role in developing
software code for companies that locked up that code for commercial gain. He perceived the
proprietary software as antithetical to the hacker culture. Accordingly, Mr. Stallman created the
Free Software Foundation (FSF) in 1985, with the goal of developing a “free” version of the
UNIX operating system and promoting “free” software. As FSF puts it, ‘Free software’ is a
matter of liberty, not price. To understand this concept, you should think of ‘free’ as in ‘free
speech,’ not as in ‘free beer.4

4
“Robert W. Gomulkiewicz, ‘How Copyleft Uses License Rights to Succeed in the Open Source Software
Revolution and the Implications for Article 2B’, (1999) 36 HOUS. L. REV. 179”

2
“The GPL has been referred to as part manifesto and part license, because in it Stallman spells
out the underlying philosophy of “free software” and, to an extent, codifies his views about
software.”5 The preamble of GPL yields three crucial components of free software: the right to
distribute, the right to get source code, and the right to modify.
B. BSD FAMILY OF LICENSES
The programmers at the University of California at Berkeley were developing and improving a
version of the operating system known as UNIX, originally developed and licensed by AT&T, in
the time period of late 1970s and early 1980s.6 Among those programmers was Bill Joy, a highly
venerated programmer who later was a co-founder of “Sun Microsystem”, bestow enormous
contribution in improving UNIX. These efforts led to software that later became known as the
Berkeley Software Distribution of UNIX which was based on AT&T UNIX code. In the early
1990s, AT&T reevaluates the value of its intellectual property associated with UNIX and began
to require UNIX licenses at much higher fees than it charged earlier. 7 “Simultaneously issue
arose that although BSD UNIX had changed from the original UNIX license, it still contained
certain features of the AT&T UNIX code. 8 The suit was settled confidentially 9 and later BSD
modified the remaining features of AT&T UNIX code with new one and eliminated the issue 10.
The BSD UNIX was similar in their approach to those of the FSF. With the easy availability of
source code programmers were able to improve the software and fix bugs. As like Stallman,
Berkeley charged very small amount for copying the program in source code on to a medium
usable by licensee. The fee was designed to cover costs.11 However, the Berkeley Software
Distribution license did not require that the derivative work should also be subject to the same
terms as the initial BSD license.

5
“The GNU Manifesto, (Stallman’s philosophical underpinnings for free software),
rd
<http://www.gnu.org/gnu/manifesto.html> accessed 23 October 2017”
6
“There are a number of detailed histories of the events at Berkeley involving UNIX. See Andrew Leonard,
‘BSDUNIX: Power to the People, From the Code’<
http://www.salon.com/tech/fsp/2000/05/16/chapter_2_part_one/print.html>
Kirk McKusick, ‘Twenty Years of Berkeley UNIX’ in Chris DiBona et al., open sources: voices from the open
source revolution, 31 (1999).”
7
“Andrew Leonard (n 4); Young, Bob Young, Giving It Away, in Chris DiBona Open Sources: Voices from the
Open Source Revolution, 121 (1999)”
8
Supra note 6
9
Supra note 7
10
Supra note 6; Supra note 7
11
ibid

3
C. MOZILLA PUBLIC LICENSE
In 1998, Netscape Corporation decided to launch Netscape Navigator, a web browser, as an OSS,
after facing stiff competition from Windows.12 Netscape developers were influenced by
Raymonds “bazaar”13 approach to software development. The “bazaar” notion suggests a
marketplace of ideas and exchange of information. Netscape’s intention to release its browser as
an OSS resulted in two key development in the history of Open Source. First, it leads to the
publication of Open Source Definition and secondly, as a commercial developer, Netscape was
very aware of the significant issues raised under the existing Open Source licenses (OSL) in the
case of a conversion of a commercial product to Open Source, especially for commercial projects
where the underlying code incorporated software licensed from a large number of developers.
After investigating the idea of releasing their incorporated codes under the OSL, ultimately
chosen by Netscape, decided that the best way would be to write its own OSL. The new license
would contain Netscape’s specific conditions and general regulations of the OSL with some
improvement in the language.14 Netscape developed Mozilla Public License after reaching a
compromise which was acceptable to Open Source Community.15

OPEN SOURCE’S VALIDITY

The OSI provides ten criteria 16 and mandate that every OSL must provide three freedoms to the
licensee, as follows.
(1) Freedom to access and use OSS and its code for any purpose whatsoever: The licensor of
the OSS is under an obligation to provide the code to the licensee who can use it for any purpose
without any discrimination such as ‘for research or non non-commercial purposes only’ or
‘excluding genetic research’.

12
“Jim Hamerly et al., Freeing the Source: The Story of Mozilla, in Chris DiBona, ‘Open Sources: Voices from the
Open Source Revolution’ 197 (1999), for a good discussion of the Mozilla project.”
13
“ Eric S. Raymond, The Cathedral and the Bazaar (O’Reilly & Asscociates 1999)”
14
“Jim Hamerly (n 10) 200. Linus Torvalds and Eric Raymond were among the Open Source “heavyweights”
consulted.”
15
“Mozilla Organization, ‘Netscape Public License: Version 1.0’, http://www.mozilla.org/MPL/NPL-1.0.html
accessed October 25, 2017; Rosenberg, ‘OPEN SOURCE: The Unauthorized White Papers’, (2000) 298.”
16
“‘Open Source Definition’ (to get the list of, and explanations on the 10 criteria)<
http://www.opensource.org/docs/definition.php >

4
(2) Freedom to make copies of OSS and to distribute them without any royalty: This states
that for additional copies created by the licensees, he does not need to pay anything to the
licensor even though those copies are distributed to others.
(3) Freedom to create derivative works of OSS and to distribute them without any royalty:
This allows the licensees to create derivative work and the licensor cannot charge any royalty for
the creation and distribution of the derivative work.
It is worthwhile noting certain facts about the above mentioned criteria about the flexibility that
OSS licenses offers. Firstly, making the source code available is an obligation for the licensor,
not for the licensee, that is, a licensee is not bound to provide the source code of the derived
work. Secondly, whatsoever be the freedom granted to OSS users the exception to this freedom
is that the users are restricted to complain about the software failures.17 Thirdly, zero royalty is
the key feature of the OSS license; one must not conclude that OSS licensor and licensee cannot
make money in selling code. Licensees can also license their derivative work under non OSS
license and therefore, can ask royalties to their licensees.
An OSS license is a copyright license not a contract 18; the licensor owns the copyright of the
software and he grants a generous license but this must not be viewed as surrendering of his
copyright. It is a bare copyright license and relies entirely upon copyright law for its
enforcement.19

INTERPRETATION OF DERIVATIVE WORKS

In 1980s the U.S. courts interpreted section 101 20 of the Federal Copyright Law broadly. The
Seventh Circuit in Midway case held that the defendant’s video acceleration boards created a
derivative audiovisual work by speeding up game play in the plaintiff’s games. 21 In both the

17
“ Most OSI licenses disclaim liability for damages. No warranties are offered to users about the performance of the
licensed program.”
18
“Andrew M. St. Laurent, ‘Understanding Open Source and Free Software Licensing’, (2004) 160”
19
“Rosen, Lawrence, ‘Open Source Licensing - Software Freedom and Intellectual Property, Prentice Hall’, (2004)
102.”
20
“A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast, transformed, or adapted.”
21
“Midway Mfg. Co. v. Artic International Inc., 704 F.2d 1009, 1013-1014 (7th Cir. 1983).”

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Worlds of Wonder cases22 the court, despite the fact that the new tapes contained no Worlds of
Wonder content, found them to constitute infringing derivative works. The criticism of this
broad interpretation is unsurprising. Even the decisive court found difficulty and admitted that it
is not obvious from this language [of the Act at Section 101] that a speeded-up video game is a
derivative work.23 Neither Midway nor Whelan24 dealt with software copyrights efficaciously.
Judge Hand in Whelan found difficulty in separating idea from expression with a general rule,
since “no principle can be stated as to when an imitator has gone beyond copying the ‘idea’, and
has borrowed its ‘expression’. Decisions must therefore inevitably be ad hoc.25

By the early 1990s, courts have abandoned the more general analysis taken in Whelan case since
software; a literary work26 also contains some elements of a machine. Rather, the courts had
started giving narrow scope of protection in favour of greater copyright exclusion.

The Second Circuit court narrowed Whelan in Altai27. The court adopted a three-stage
“abstraction, filtration, comparison” test.28 The first step, abstraction, involves dividing the
program into its component parts to determine what, if any, protected expression existed at that
level. The second step is filtering the unprotect able elements out of the program. Since the Act
does not provide any protection to an underlying idea or any elements necessary to implement
the idea.29 Moreover, Altai supplied additional considerations for this second stage. First, the
court excluded any code structure dictated by ‘efficiency’ 30 and secondly, it adopted a form of
“scenes a faire” for software.31 The third step compared only the “core of protectable
expression”. Applying a standard infringement test, the courts determined whether the works
were substantially similar, and, if so, whether any copying was substantial enough to constitute
infringement.

22
Worlds of Wonder, Inc. v. Veritel Learning Systems, Inc., 658 F. Supp. 351 (N.D. Tex. 1986)
23
ibid
24
Whelan Assoc., Inc. v. Jaslow Dental Lab., Inc. 797 F.2d 1222 (3d Cir. 1986)
25
Ibid; Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)
26
“Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 712 (2d Cir. 1992) (“Congress has made clear that
computer programs are literary works entitled to copyright protection.”)
27
Ibid
28
Ibid 706-711
29
Ibid 707-710
30
Ibid 707-708
31
Ibid 709-710.

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The Altai court rejected the “sweat of the brow” defense stating that “the interest of the copyright
law is not in simply conferring a monopoly on industrious persons, but in advancing the public
welfare through rewarding artistic creativity, in a manner that permits the free use and
development of non-protectable ideas and processes.”32 Hence, Altai provides both, the narrow
and the broad, protection to the derivative works.

CONCLUSION

The period from 1998 to 2003 has gained a lot of attention towards OSS as many companies
have shifted major software from commercial to an Open Source licensing model. Human by
nature have always opposed the changes around him and the change in the developing and
licensing of the software in an open manner is also opposed by some observers by putting forth
some potential conflicts between OSS and copyright. Contrary to the common wisdom that OSS
is opposed to intellectual property, we have shown that copyright law is at the heart of Open
Source licensing models. The only thing is that the author of OSS grants a gratuitous license with
regard to various rights given to him by copyright law.

Although the validity of OSLs has been challenged in courts but no decision has been given, yet
some legal practitioners and Open Source community had a firm believe that they are
enforceable. The conflict over the interpretation of derivative work has been solved by giving
both the narrow and broad interpretation by the courts over the definition of derivative works.
Through this, the courts have maintained the balance between the interest of commercial
programmers and public. Moreover the three stage test provided by the courts is also helpful in
identifying the conflict. Contrary to the common view of considering OSLs as ‘viral’ in nature, it
has been proven that it is only due to misinterpretation of the license. An effective copyright
liability insurance market needs to be developed in order to protect the developers from third
party infringement.

The development of the Open Source movement, the OSLs, and software freedom will
play a very important role in the development of the Internet and our approach to intellectual
property law in the future.

32
Ibid 711