Open-Source Software and Intellectual Property Rights
by Justice Yatindra Singh
Cite as : (2004) 4 SCC (Jour) 28
Inventions, discoveries and technologies widen scientific horizons but also pose new challenges for the legal world. Information technology brought about by computers, internet and cyberspace has also posed new problems in jurisprudence. These problems have arisen in all areas of law. The law (statutory or otherwise) providing answers to these problems or dealing with information technology are sometimes loosely referred to as computer laws or information technology laws or simply cyber laws. Intellectual property rights (IPR) are an important aspect of cyber laws. Today we will discuss one aspect of IPR relating to the open-source software. But first a few words about IPR.
Intellectual property rights (IPR)
What is worth copying is prima facie worth protecting1 is the genesis of intellectual property rights. These rights refer to the property that is a creation of the mind: inventions, literary and artistic works, symbols, names, images and designs used in commerce. It is broadly divided into two categories:
- Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, drawings, paintings, photographs, sculptures and architectural designs. It lies in description of some.
- Industrial property, which includes inventions (patents), trademarks, industrial designs and geographic indications of source.
In India, IPRs are protected under different Acts namely,
- I. The Copyright Act, 1957
- II. The Designs Act, 2000
- III. The Geographical Indications of Goods (Registration and Protection) Act, 1999
- IV. The Patents Act, 1970
- V. The Protection of Plant Varieties and Farmers Rights Act, 2001
- VI. The Semiconductor Integrated Circuits Layout Design Act, 2000
- VII. The Trade Marks Act, 1999
Apart from the aforesaid Acts, IPRs are dealt with in two more areas, namely, the Trade Secret Act and the Indian Contract Act. Today we will confine to the Copyright Act as this has bearing on open-source software.
Copyright: source code and object code
Computers do not understand our language. They only understand machine language or machine code i.e. instructions which consist of a series of 0s and 1s. In the earlier days a computer program used to be written in machine code or by punching a punchcard. The punched slot or unpunched slot indicated requisite information to the computer. This process was slow and tedious. Such a program, although intelligible to the computer, was virtually unintelligible to anyone except an equally skilled programmer.
From earlier days, the computer scientists also devised an alternative language for writing programs, known as assembler language. These assembler languages had advantages over writing a program in machine code but they still required many instructions to be written in order to achieve the simplest tasks. A number of high-level languages such as Basic, Fortran, Cobol, Pascal etc. have been devised in order to simplify the work of a programmer. The use of these high-level languages enables a programmer to write a program in terms that nearly resemble ordinary English unlike those used in the lower-level languages. They also permit complex operations for the computer to be directed by a relatively compact command. The programs as written by a programmer are known as the source code. When an assembler or a compiler converts it into machine code, it is known as the object code. Generally, this conversion is one-way from source code to the object code. However, it is possible to reverse it but decompilation and disassembling is time-consuming and expensive.
GAIM is a popular program for it loads different instant messengers (MSN or Yahoo) together.
Source code of GAIM is open; it is known to everyone. It is written in C++. A small part of it is as follows:
static GaimCoreUiOps *_ops = NULL;
static GaimCore *_core = NULL;
If one reads it one can understand a few words mentioned therein and what it is trying to say. It is a kind of description of something and it amounts to literary work within the meaning of the Copyright Act and is so protected. A source code of a computer program if it is open is a literary work within the Copyright Act. However, often it is not disclosed and is kept as a trade secret. But is an object code also protected?
The question, whether source code and object code both are protected by copyright or not, has troubled the courts and has been differently answered. The Australian High Court in 1986 held that the source code is a literary work and is protected as a copyright. But no such protection was given to the object code. One of the Judges in the majority held2:
I have not found anything
that has persuaded me that (the object code) a sequence of electrical impulses in a silicon chip not capable itself of communicating anything directly to a human recipient, and designed only to operate a computer, is itself a literary work, or is the translation of a literary work within the Copyright Act.
The aforesaid question did not arise in India. Earlier the provisions in the Copyright Act in our country were similar; it was possible that courts might have rendered similar judgments.
Amendments in the Copyright Act
The Berne Convention for protection of literary and artistic works in 1986 provided that computer software (object code and source code) and compilation of data be protected under the Copyright Acts. Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS) is part of the charter establishing World Trade Organisation (WTO). Every member of WTO (and our country is a member) has to accept it. It has proceeded from the Berne Convention and Article 10 of TRIPS requires members to amend the laws accordingly. Since then we have amended the Copyright Act by two amending Acts namely Act 38 of 1994 and Act 49 of 1999. These amending Acts amended Section 2(o) of the Copyright Act to change the definition of the words literary work. It now includes computer program as well as computer database. The result is that not only the computer programs (subject code as well as object code) but computer database is also protected as a copyright. In India infringement of a copyright is a penal offence and civil remedies (injunction, damages etc.) are also available (TRIPS Articles 41 to 50, 61). By the two amending Acts consequential amendments were also made in other sections to make enforcement more realistic.
Software licences: open-source software
One never purchases software but merely takes a licence to use it. There are different kinds of licences. Software where source code is not open and is secret is known as close-source software. Proprietary software is a close-source software, where in general the user has only limited right to use a product, on a specific computer (sometimes with a specific power or processor) sometimes with a limited number of signed or concurrent users. Freeware is usually used when a piece of software is given at no cost. Generally the programs are released only as executables, with their source code not available. For example, one can download the Adobe Acrobat Reader as a freeware, but the software is still proprietary. Shareware is usually distributed free of charge for a limited period of time or for a limited use, mainly to give the user the opportunity to test it before buying it: try before you buy is their motto. Public domain software is a software for which copyrights do not exist. Although this notion is invalid in Europe (but can be understood under US law), it is often used for software; anyone can use it for any purpose, without any restriction. However, the availability of the source code is not guaranteed.
Copyrights are used to protect computer software but everyone is not using copyrights to have rights in software. Some are using copyrights so that no one may have any rights in software; there is a new word for it: they copyleft it.
Software where source code and object code both are freely available is called open-source software (OSS). In copylefted open-source software, source code and object code are freely available to be used, modified and improved without any charges3 Not all open-source software is copylefted; it could be non-copylefted. This depends on the terms of licence of the software. The term open-source software is often used in the sense of open-source software that is copylefted.
In order to copyleft a software, the owner first states that it is copyrighted and then adds distribution terms that gives everyone the right to use, modify and redistribute (the source code and the object code in the original or modified program) only if the distribution terms are unchanged, modified version (source code and object code) is freely available and could be further modified and distributed only on the same terms. In other words, there is freedom to modify the software and anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copylefting guarantees that every user has freedom.
There is some debate whether open-source software (copylefted) be called free software. One section [Free Software Foundation (FSF)] says there is freedom to modify software and it should be called free software. However, this causes confusion as the word free has the meaning that it is without any cost. It could be mistakenly understood for the software that is of no cost or freeware. The other section [Open Source Initiative (OSI)] prefers to call it open-source software. The ideals of both are the same; it would be better if they could sort out this difference. I am using the words open-source software rather than free software, just to avoid confusion. This does not diminish the contribution of either of them.
General public licence (GPL) contains a condition that copylefts a software. GPL licence was drafted by Richard Stallman with the help of lawyers. He also founded the Free Source Foundation and is responsible for the GNU Project. GNU is a recursive acronym and stands for GNU is not Unix. Most of the software under the GNU Project are under GPL.
Software, under a GPL licence, is also known as GPLed software. GPLed software can be integrated with similar GPLed software but not with any proprietary programs. However, an LGPL (earlier known as library and now lesser general public licence) can be integrated with almost any kind of software including proprietary software.
Linux is the most successful and commonly known GPLed software. It is inspired by Unix, another operating system, that was developed at AT&Ts Bell Labs in the late 1960s. At that time AT&T was a regulated monopoly and it could not sell computers. AT&T made Unix freely available along with source licence to the universities and the Government so that programmers could tinker with it and improve it. By the early 1990s, Unix became a powerful and popular operating system though there were competing versions of the same.
Andy Tanenbaum, a University Professor in Amsterdam, wrote Minix, a Unix clone, as a teaching aid for Unix. Linus Torvalds, a student of the University of Helsinki, Finland, in order to overcome the shortcomings of Minix, started writing a program for a new operating system, which was based on Unix. It was Linus Unix or simply Linux. In developing it, Linus had relied on a lot of tools that had been distributed freely over the internet especially the GCC compiler distributed by GNU, a GPLed software. Many GPLed softwares were also integrated with Linux. It is for these reasons many prefer to call it GNU/Linux. I have used the word Linux as it is shorter of the two and have mentioned the name of Linus Torvalds because he was the originator of Linux. This should not be understood as undermining the contribution of the GNU Project or thousands of other programmers who are responsible for the success of Linux.
However, one should know about a suit against IBM regarding use of Linux. Its outcome might change the future of Linux.
AT&T had given one of the licences of Unix to the University of California, Berkeley (the University) at the time when AT&T could not do computer business. The University developed and released its own version of Unix, known as the Berkeley Software Distribution or BSD. It became freely available and other companies incorporated it in their own products. In the meantime, AT&T was broken up in 1984 and was allowed to do computer business. It continued to improve its own Unix and released commercial versions of the same. The BSD version of Unix developed by the University became a contender to AT&Ts version. AT&T sued the University for infringement of its IPR. The defence was that the University had the right to distribute their version of Unix as most of the subsequent work was done by the University. In 1993 AT&T sold its Unix business to Novell who settled the suit with the University on undisclosed terms. In 1995, Novell sold the unit that marketed commercial Unix software to Santa Cruz Operation (SCO). SCO filed a billion-dollar lawsuit this year alleging that IBM violated its trade secrets by implementing ideas from Unix in Linux. The suit also alleges that IBM breached its contract with SCO that allowed it to sell its version of Unix called AIX. It is not clear as to what was sold to SCO by Novell as according to Novell it, and not SCO, owns the Unix copyrights and patents. According to Novell, it simply sold SCO a licence to develop and then sub-licence its version of Unix to other companies but it did not sell any Unix-related intellectual property to SCO.
Other successful open-source softwares
Some other popular copylefted open-source softwares are
- OpenOffice.org suite
Office suite provides bundle of softwares that are used in an office. The most popular office suite is Microsoft Office Suite. OpenOffice.org suite is similar to it.
A software which permits one to access internet is called web browser. There are many such softwares: Opera, Internet Explorer etc. Mozilla is a web browser. OpenOffice.org suite and Mozilla both can be operated in Linux as well as Windows.
Microsoft Outlook is an electronic personal information manager. It manages ones e-mail, calendar, appointments, etc. Ximian is also an electronic personal information manager. It is similar to Microsoft Outlook, however, it works on Linux only.
Open-source software concept is spreading in other arenas: like higher education and is appropriately called open courseware. Massachusetts Institute of Technology in Cambridge, Massachusetts, has posted course materials for 500 of its classes on the Web by the end of September 2003. It plans to post online material for virtually all its 2100 formal courses. The material can be used freely by anyone and altered to meet local needs, as long as MIT is credited as the source for the material and no one charges for it. Similar networks have been built around the human genome project and its descendants; the offering by artists of free online music; and a new research journal project called the Public Library of Science.
Open-source software: future
Linus Torvalds (along with David Diamond) has written an autobiographical book Just for Fun: the Story of an Accidental Revolutionary. It is entertaining and offers an insight into how the mind of a creative developer works. The last few chapters of this book including the one on Intellectual Property make interesting reading. He says (on pp. 194, 210 and 213):
The GPL and open-source model allows for the creation of the best technology.
It also prevents the hoarding of technology and ensures that anyone with interest wont be excluded from its development.
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So open source would rather use the legal weapon of copyright as an invitation to join in the fun, rather than as a weapon against others. Its still the same old mantra: Make Love, Not War, except on a slightly more abstract level.
* * *
Imagine an intellectual property law that actually took other peoples rights into account, too. Imagine IP laws that encouraged openness and sharing. Laws that say sure, you can still have your secrets, whether they be technological or religious, but that doesnt mandate legal protection for such secrecy.
Linus Torvalds manages and releases Linux kernel. Will he always be there to do so? Who would do it after him? Will there be another Linus? Many also make a point: Who can afford to do professional work for nothing? To them, proprietary software is the only solution. Windows a proprietary software, is undoubtedly the most popular desktop for personal computers. Bill Gates in his book The Road Ahead says (p. 122):
In addition to free information, theres a lot of free software on the internet today, some of it is quite useful. Sometimes it is commercial software given away as part of a marketing campaign. Other times the software has been written as a graduate student project or at a government-funded lab. But I think consumer desire for quality, support and comprehensiveness in important software applications means that the demand for commercial software will continue to grow. Already many of the students and faculty members who wrote free software at their universities are busy writing business plans for start-up companies that will provide commercial versions of their software with more features, not to mention customer support and maintenance.
Which way will the software industry go? I am neither an expert in this field nor can I see the crystal ball. There is a suit also. However, I shifted to GPLed software a few years ago the reasons were practicable. GPLed software comes without any cost. And it does what I do word processing, playing music, watching video, surfing internet and electronically managing my calendar as well as any other proprietary software. This paper as well as the presentation was made in OpenOffice.org suite over Linux machine.
Michael Lewis wrote a book in 1999 on the success story of the Silicon Valley entitled The New New Thing: a Silicon Valley Story. The most quoted line from this book is The definitive smell inside a Silicon Valley start-up was of curry. Lets hope that with a better understanding of cyber problems, their solutions and cyber laws not only inside a Silicon Valley start-up but also inside the operating system of e-commerce and cyberspace there will be the smell of curry.