This piece has been authored by Khushboo Jagasia (IIrd Year, BBA LLB (Hons.)), and Khushie Jain (IIIrd Year, BBA LLB (Hons.)) ,Symbiosis Law School Pune
Keywords: Open-Source Software, Copyright Protection, Open Code, Licensing Compatibility, Intellectual Property
Introduction
What is open source?
The computer, a human-made machine, lacks inherent comprehension of human languages. To facilitate its functions, developers create a numerical code, known as the source code, intelligible to the processor. This coding language is transformable by humans into advanced machine code or object code.
Developers frequently utilize open-source models to construct Open-Source Software (OSS), released under a license for public access without constraints on modification or distribution. Programmers contribute to innovation through the development, critique, and modification of source code, enhancing the existing software. This collaborative approach fosters transparency and healthy competition within the community, providing a platform for continuous improvement and the cultivation of skilled technologists.
How Open-Source Sparks Innovation
OSS has revolutionized technology accessibility, empowering people with the knowledge and skills to create. It broadens professional opportunities enhancing flexibility, democratizing the ability to challenge and shape the future. Beyond individual empowerment, it benefits businesses by cutting development costs and delivering competitive products and services to the market.
OSS CHRONICLES: THE INTELLECTUAL PROPERTY TWIST
“What is worth copying is prima facie worth protecting”
- Paterson J[i]
Need for Authorship Rights
In the open-source realm, creators retain the crucial right to safeguard their work from unauthorized use. While freely sharing their software with the public, they rightfully maintain control over usage and demand proper attribution. This ensures a secure environment for developers to contribute, backed by intellectual property laws. Collaborative efforts between developers and corporations not only enhance software functionality but also prevent companies from being tightly bound to a specific vendor, granting them greater control over their software. It’s a win-win scenario fostering a vibrant community of experts dedicated to refining and troubleshooting.
Legislative Analysis
In the legal landscape, the Australian High Court recognizes source code as a literary work, offering protection to Open-Source Software (OSS).[ii] However, this protection doesn’t extend to the object code, as it doesn’t convey the work to a human recipient.
In India, code is considered a literary work, eligible for copyright protection. Releasing software requires a license, like those used by Linux, WordPress, TensorFlow, and MySQL, explicitly stating permissions to avoid infringement[iii].
The nature of Open Source—whether permissive or restrictive—is determined by its license. Fully public releases are the most permissive, while some licenses have minimal restrictions on modification or redistribution.
A crucial legal precedent in the Robert Jacobsen vs. Matthew Katzer[iv] case highlights that infringement claims depend on license terms. Non-exclusive licenses may not support copyright infringement actions, but breaching license limitations can lead to legal consequences. The license acts as a decisive factor in determining copyright infringement or a breach of covenant.
Code Chaos: Unveiling Risks in Open-Source Copyright Licenses
Delving into Open-Source Software (OSS) brings great benefits, but it’s crucial to navigate the world of licenses wisely. Before diving in, understanding how licenses work, following their rules, and using tools to track licenses in your product is key. Don’t assume unlicensed code is automatically open software unless specified.
Open-source licenses, despite their free usage, come with terms and conditions that demand attention. To steer clear of legal troubles, it’s essential to be aware of individual licenses for each code component. Some codes might lack compliance with the software development process, exposing developers to legal liability if infringement is present. To stay on the safe side, thorough documentation is your best ally.
Decoding License Compatibility in the OSS Playground
Venturing into the world of Open-Source Software (OSS) opens up avenues but also introduces a fascinating challenge: license compatibility.[v] Here’s the scoop:
Permissive Licenses: Where Collaboration Blooms
Think of permissive licenses, like the Apache 2.0, as the friendly chameleons of the license realm. They easily blend with other licenses, even the stricter copyleft ones, allowing developers to mix code seamlessly without exposing the source.
Copyleft Licenses: A Nuanced Choreography
On the flip side, copyleft licenses follow a stricter dance routine. They might require users to release modifications or the entire code to third parties under the same license. This dance could potentially taint proprietary code, posing a risk for businesses. However, there’s a silver lining – businesses can keep modified code confidential if it’s for internal use and not distributed.
In the OSS arena, understanding the dynamics between permissive and copyleft licenses is like mastering a dance. It ensures a harmonious collaboration while safeguarding the confidentiality of proprietary code.
Unveiling Business Risks
Diving into Open-Source Software (OSS) brings not just opportunities but potential pitfalls, especially when it comes to understanding the permissions granted by multiple licenses. Overlooking these nuances can lead to consequences like rewriting software, financial liabilities, damage to goodwill, or other penalties.[vi]
For businesses, the absence of clear contracts or warranties protecting against code infringement in the commercial realm exposes them to risks. A stark reminder comes from the Free Software Foundation v Cisco case[vii], where Cisco’s failure to adhere to Open-Source Software License terms led to legal action. The court in the Southern District of New York ruled against Cisco, mandating financial relief. Cisco had to release part of its code publicly, ensure compliance with the free software license, and inform customers of their rights under the GPL License.
In the SCO vs IBM[viii] saga, claims and counterclaims over Unix Code ownership unfolded. While a court denied amendments for copyright breach claims, SCO offered a license to use its Linux program, with potential implications for unauthorized software use. However, it offered a license to use its Linux program utilizing the code under litigation to ban any unauthorized use of its software. As the legal dance continues, SCO could wield its intellectual property rights against end-users if it establishes source code ownership. The lesson here is clear: in the OSS world, legal awareness is paramount to navigate the intricate landscape successfully.
OPEN-SOURCE SOFTWARE as an avenue for the future: Promise and Possibility
Further, we explore different blueprints implemented by nations all over the world to create a quantum of balance in the use of OSS.
India
In a visionary move outlined in the National Policy on Information Technology (2012), the Indian government is championing open-source adoption. The “Policy on Adoption of Open-Source Software for Government of India” not only cuts costs and boosts flexibility but also fosters collaboration by opening up government application source codes. It’s a strategic leap into the future, promoting innovation and community partnerships in the tech landscape. Further, it also promotes collaborative spirit and partnership in the community through its policy on Collaborative Application Development by Opening the Source Code of Government Applications.
USA
In the Planetary Motion, Inc. vs Techsplosion case[ix], the Eleventh Circuit Court highlighted the economic advantages of public licenses, solidifying Open-Source Software’s (OSS) significance. The U.S. government’s 2016 Federal Source Code policy[x] promotes sharing and re-utilizing policies across agencies, reducing costs and enhancing innovation. 18F, a digital service delivery platform, embodies the OSS model, openly developing accessible models. It underscores the essence of the OSS model—continuous peer review through public code sharing or expanded testing beyond the development team.
Innovation success is evident through ‘data.gov,’ enabling easier discovery of unbiased data within the US Government. This model extends beyond technology, making its mark in the Department of Defence.
European Union
EU nations are trailblazers in Open-Source Software (OSS) development[xi], spearheading advancements like the Linux Kernel 30 years ago. Home to key players like GitLab and Canonical, the EU takes a groundbreaking step with the “Open-Source Software Strategy.” This strategy not only recognizes OSS power but also aims for transformation by establishing an Open-Source Programme Office to impact innovation and internal governance. The European Commission’s Open-Source Observatory (OSOR) is a collaborative hub and an informative platform, fostering awareness of OSS policies and best practices.
Conclusion
In the ever-expanding realm of Information Technology, investors are increasingly focused on a company’s use of open source. The stakes are high, and overlooking due diligence or neglecting license rights can send shockwaves through any business.
Open-Source Software (OSS) holds the power to drive transformative change in the digital age by striking a balance between freedom and responsibility. To fully tap into the promise of OSS, all stakeholders must diligently follow protocols and respect usage terms and conditions.
It is imperative not just to adopt open source but to do so with a vigilant focus on thorough research, honouring license rights, and adapting to the evolving protocols. It goes beyond mere coding; it involves crafting the future of a business within the nuanced potentialities of open source.
[i] University of London Press v University Tutorial [1916] 2 Ch 601
[ii] Gibbs J. in Computer Edge Pty Ltd vs. Apple Computer Inc [1986] 161 CLR 171
[iii] Samuel Tibbetts, Stuart James,’Is The Use of Open Source Software Putting Your Business at Risk?’ (Global IP & Technology Law Blog May 6, 2020)<https://www.iptechblog.com/2020/05/is-the-use-of-open-source-software-putting-your-business-at-risk/> accessed on 10th July 2023
[iv] Robert Jacobsen vs. Matthew Katzer, (Fed. Cir. 2008) 535 F.3d 1373
[v] Benedykt Dryl, Olga Gierszal,’Open Source Licenses to Avoid – Steps to Prevent the Legal Risk [2023]'( Brainhub July 11 2023) <https://brainhub.eu/library/open-source-licenses-to-avoid> accessed on 17th July 2023
[vi] Synopsys Editorial Team ,’Guide to open source licenses’ (Synopsys Home Page Application Security Friday, October 7, 2016) <https://www.synopsys.com/blogs/software-security/open-source-licenses/> accessed on 17th July 2023
[vii] Free Software Foundation v Cisco1:08-cv-10764, (S.D.N.Y.)
[viii] SCO v IBM Civil No. 2:03CV0294 DAK
[ix] Planetary Motion, Inc vs Techsplosion Inc 261 F.3d 1188, 1200 (11th Cir. 2001)
[x] Tony Scott, ‘ Leveraging American Ingenuity through Reusable and Open Source Software” (The White House 10 March 2016)<https://obamawhitehouse.archives.gov/blog/2016/03/09/leveraging-american-ingenuity-through-reusable-and-open-source-software> accessed on 18th July 2023
[xi] European Commission Brussels, 21.10.2020 (2020) 7149 final COMMUNICATIONS TO THE COMMISSION OPEN-SOURCE SOFTWARE STRATEGY 2020 – 2023 Think Open https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/61962/open_source.pdf> accessed on 16th July 2023