Journal of Rights Vol 17, November 2012, pp 511-520

Open Source Paradigm and Intellectual Property Rights

Vikrant Narayan Vasudeva† Indian Institute, Bhagwan Dass Road, New Delhi 110 001, Received 27 March 2012, revised 16 May 2012

Open source software represents a paradigm shift in the field of software development. This new community based software development model, instead of relying on the conventional proprietary model of limited access, invites programmers globally, to freely copy, share, and modify the software. It is a misconception to believe that the general approach of open source software (OSS) towards IP and focuses on specific issues that emanate from the interaction of the OSS model with the existing intellectual property rights structure. How IP open source programs are placed in the ; they are very much protected by intellectual property laws, but distributed under terms which instead of being restrictive promote access. This way it challenges the established norms of all existing branches of intellectual property. The open source movement necessitates scrutiny; more than just being a new fangled approach, it catalyses debate regarding both the mode of software production and its protection. It is being used to propel arguments to revisit intellectual property jurisprudence. After all, the intention of the intellectual property-software system is to catalyse innovation and ultimately serve the society. How IP impacts on the OSS model and how OSS uses IP in a novel way to achieve its ends are discussed in this article.

Keywords: Open source software, intellectual property rights, , proprietary, , open

The institution of open source has its roots in an The open source movement traces its origin to two ethical rebellion of sorts by software programmers academic institutions-the Massachusetts Institute of expressed in the form of sharing source code of Technology and the University of California, computer programs. The cause was subsequently Berkeley. The open source philosophies that evolved taken up by academics and practitioners alike, and at these two institutions, eventually formulated the eventually this model snow balled into a parallel polar factions of the movement represented famously regime in the software development landscape. by the GNU General Public License (GPL) and the Open source software represents a paradigm shift in Berkeley (BSD) License. the field of software development. As opposed to the Almost two decades later, Netscape Corporation was generically referred ‘conventional,’ ‘proprietary,’ responsible for creating the third pillar bolstering the ‘closed,’ source code model, the open source software open source movement represented by the Mozilla model emphasizes on unrestricted accessibility to the Public License (MPL). Thus, open source software source code of the program. Also, unlike, proprietary does not simply mean freedom of access to source software, open source code development is not a code. It includes much more depending upon the solitary or a closed group task – it is a community standard setting body spearheading the project. based development model adopting the ‘bazaar style,’ Though acronyms for the entire field of such as opposed to the ‘cathedral’ approach.1 The open software have been developed, viz. ‘Free/Libre/Open source development model is not subject to prejudices Source Software (FLOSS),’ ‘Free/Open Source based on maturity, education or experience. Also, there Software (FOSS),’ ‘OS/FS’ etc., with time, simply the is no need to assemble the community at one physical generic term Open Source Software (OSS) has come place, virtual interaction is sufficient. Thus, the open to encompass the entire field of software based on this source model allows larger groups to interact, and particular mode of software development, whether it increases accessibility to many more resources, while officially falls under the criteria of ‘Open Source’ keeping the transaction costs at a minimal. software or ‘’ or ‘Libre Software’ or any other.2 Need for correct nomenclature distinction ______† Email: [email protected] only arises when the are being critically 512 J INTELLEC PROP RIGHTS, NOVEMBER 2012

analysed. In this article too, the term open source and essentially protects the technological expression software has been used in its generic-industry of software. Trademark protection, moral rights and recognized and popularized form as representative of design protection laws along with technological the entire development model. protection measures and licensing too are applied. It is It is a misconception that open source programs are not necessary that all the forms of protection would be placed in the public domain; they are very much exercised with every software; developers may protected by intellectual property laws, but distributed choose to rely on none, some, or all of them.4 under terms which instead of being restrictive Interaction of the traditional intellectual property promote access. This new model of software structure and computer software generated the development, instead of relying on the conventional proprietary model of software development, which proprietary model of limited access, invites was the veritable apotheosis for over two decades. programmers globally, to freely copy, share, and Laments increased that traditional IP protection in modify the software. This way it challenges the software were steadily whittling down the public established norms of all existing branches of domain. The key critique of the traditional manner of intellectual property (IP). application of IPR to software is that it is better suited The open source movement necessitates scrutiny; for protecting, than for facilitating relinquishment of more than just being a new fangled approach, it rights.5 Open source philosophy when applied to catalyses debate regarding both the mode of software software re-imagines the interaction and interpretation production and its protection. It is being used to of various IP laws. propel arguments to revisit IP jurisprudence. After all, the intention of the intellectual property-software Protection system is to catalyse innovation and ultimately serve Trade secret law was favoured in the early phases the society. of computing technology, when software was This article introduces the general approach of OSS individually distributed under tight contractual towards IP laws. It focuses on specific issues that control. However, with technological evolution, it no emanate from the interaction of the OSS model with the longer remained apt or adequate. Though trade secret existing intellectual property rights (IPR) structure. How protection is still used for software, it is no longer its IP impacts on the OSS model and how OSS uses IP in a dominant or sole mode of protection. Open source novel way to achieve its ends are discussed. Thereafter, software furthers this rift; its ideology is in complete this article introduces how OSS propagates its model conflict with trade secret law, thus rendering its through the licensing medium. The essence of application to open source software unfeasible.6-7 development of the OSS model is based on its marked The (FSF) considers variance from the proprietary licensing model. Finally, distribution of code as trade secret a violation of the article highlights the scope for complementary GPL.8 In fact, the FSF considers distribution under development of the open source agenda in the light of any type of restrictive agreement like a non-disclosure property rights jurisprudence. 6,8 agreement a violation of the GPL. Thus, it appears Legal Governance Structure of Open Source Software that open source software and trade secrets are in Traditionally, law was available to perpetual conflict.6 However, the GPL allows protect literal and the patent law, mechanical. Being a developing code on a restrictive basis in a client- written work with a utilitarian character, computer developer type software development model.8 Thus programs pose difficulty in categorization in the this is one scenario where trade secrets might still be present library of IP protection.3 Despite the paradox, applicable in the open source software context. Still, the current IP regime, arrived at an accommodation, in such a scenario, the developer would be able to and protects various components of computer harness the open source community only till the software separately. Trade secret law was the period before taking the code as trade secret and any traditional vehicle of software protection; it can inputs thereafter would be curtailed. Hence, there are protect secrets embodied in or implemented through extremely limited possibilities for trade secrets and software. While, copyright chosen as the legislative open source software to co-exist.6 vehicle protects the literal expression of software; Trade secrets in the open source arena have been patent protection for software has grown doctrinally raised in litigation too in v SCO, where, Red VASUDEVA: OPEN SOURCE SOFTWARE PARADIGM AND IPR 513

Hat sought to obtain a declaratory judgment arguing regards the scope of protection to be afforded to the that being publicly available could not be non-literal elements of a computer program. The protected by trade secrets, and hence, Red Hat had not broader view provides expansive protection, bringing violated SCO’s trade secrets.9 such elements as the program’s structure, sequence, and organization within its scope.17 On the other hand, Copyright Protection the narrower view, confines the scope of protection by Open source proponents disapprove of the current excising the non-copyrightable elements before ‘proprietary’ model of copyright protection for determining the computer program’s overall copyright software. They perceive it as a deviant application of protection.18 Both factions have their share of critics. the justification for copyright law - to induce Whether the broader view or the narrower view is innovation; also they challenge the need for monetary resorted to, both have their iota of positive factors and incentives itself to induce innovation in software shortcomings, and both would cause the development creation. Open source proponents believe that the of open source software along different planes.19 model restricts the benefits to society.10-11 In an effort to rectify this perceived A major concern for the open source arena and a erroneous state, the open source regime introduced its common allegation of the proprietary arena is the own vision of copyright protection for software. infiltration of open source code in proprietary code OSS innovatively re-interprets the essential legal and vice-versa. It could open both sides to allegations of infringement. This issue came to a heated point in foundation upon which the proprietary software 20 industry exists. Unlike proprietary software, in which the SCO v IBM litigation, where SCO claimed that copyright is used to ‘exclude’, open source offers a IBM illegally incorporated SCO’s proprietary UNIX dissenting logic to promote ‘inclusion.’12-13 The open code into the open-source Linux operating system, source modus operandi essentially is to copyright and thus every Linux distributor, developer, and user would become copyright infringers if they did not pay software and then mass license it for use, 21-22 improvement or modification, primarily under two a licensing fee. The court ultimately determined models; one where the alterations are contributed that 326 lines of code in the Linux kernel were potentially infringing.23-24 back to the software community on reciprocal terms (colloquially referred to as copyleft) and second, Worse still, for the proprietary arena, if the viral where they need not be. This development model taint of the open source license is applicable, it could allows subsequent users to disseminate the open- well mean disclosing the code to the community at source tenets which proliferate exponentially with large. A possibility exists that incorporating code increased distribution.14 Herein lies the innovativeness licensed under a reciprocal license like GPL into the of the open source premise, where some traditional source code of proprietary software could potentially copyright benefits are relinquished, thus allowing ‘infect’ the proprietary software, thus causing it to be greater leeway in rights usage. automatically licensed under the reciprocal license’s 25 Scope of copyright protection has an inverse terms. This is what is speculated to have occurred in relationship with public access. Consequentially, a the case of , where it was forced to need arises to determine the scope of copyright contribute code (Hyper-V drivers) to Linux to avoid a protection for computer software. However, it is GPL violation when it was discovered that Microsoft easier said than done. Unfortunately, due to their had incorporated GPL-licensed components into its 26-27 different ideologies, and the manner in which open Hyper-V drivers. source software uses copyright law, any change in the Open source movement does not relinquish law that strengthens open source software also copyright, infact, it is entirely dependent on copyright promotes abuses in the proprietary system, and any law.28 Without copyright protection and the ensuing change that directly addresses those abuses tends to licensing scheme, the OSS development model would weaken it.15 be reduced to an honour system.29 However, the OSS Specifically, as regards the idea-expression movement reflects the intent of its founders to turn dichotomy, ‘[n]obody has ever been able to fix that traditional notions of copyright, licensing, boundary, and nobody ever can.’16 Consequently, development and even on their heads, even determining non-literal infringement as against literal to the point of creating the term ‘copyleft’.30 In this infringement is difficult. Judiciary is divided as regard, the GPL has been referred to as ‘a hack on the 514 J INTELLEC PROP RIGHTS, NOVEMBER 2012

copyright system’ because it uses the exclusive rights modification could be held to infringe the reputation under copyright law to promote rather than restrict rights of its previous authors.38 access.15 This attempt to allow the author and the public to interact in a way that normal copyright does Patent Protection Software are viewed with a jaundiced eye not is viewed as an inherently imperfect solution by 39-40 critics to correct the unreasonableness of by the open source community. Open source contemporary copyright law.31 Imperfect or not, this proponents seek to revisit patent jurisprudence in the context of software programs altogether, citing it as concept has spawned a completely divergent policy 41 model of software creation. Moreover, the success of an undeserved reward, and disputing the traditional incentive structure especially in view of open source OSS licenses indicates that the existing copyright law 42 is capable of facilitating cumulative innovation.32 software’s success. Arguments against software patents range from the Moral Rights procedural to the theoretical. The procedural Moral rights are considered extremely relevant as arguments vilify the ’s patent grants and regards open source software.33 Largely, the open procedure in computer software. They challenge the source software approach is based on attribution and prolonged patent term, relaxed standards of non- reputation rewards as opposed to monetary rewards. obviousness for building-block programs, opaque Moral rights in software are controlled either prosecution process, non-disclosure of source code, jurisdictionally, or by limits to the rights themselves.34 abuse of continuation filings etc.40-41,43-44 The While some countries recognize moral rights, others do theoretical arguments, perceive software patents as not. Some countries specifically deny moral rights the very antithesis of innovation by creating a protection to software authors, or permit authors to ‘thicket’ – an ‘anticommons’ by which large number contractually waive moral rights; others curtail the moral of ‘building block’ programs become legally rights available to software authors. Section 57 of the inaccessible.41 While the proprietary model’s Indian Copyright Act recognizes the right of paternity corporate and traditional intellectual property based and integrity in context of computer programs; however, structure creates avenues to address these concerns, the integrity right is curtailed by Section 52 in context of the open source structure has limited options. adaptations of computer programs for interoperability Furthermore, software patents pose a veritable and back-up copy purposes. threat to the open source propagation model. If an Legal systems that recognize moral rights may infringement of a proprietary program by an open already provide a degree of latent alternative source program, even a minimal bit is confirmed, it protection for OSS; in such countries, violation of the would essentially bring its development to an open source licensing terms would constitute a effective stop, at least in the open source arena. The violation of the developer’s moral rights.34 For open source faction’s woes are further augmented by example, under German law, despite the broad scope the fact that software patents promote a form of veiled of release of OSS by the GPL, the modifier’s action infringement of open source products on the one hand can still be restricted by the author based on Section while conversely the very nature of open source 14 of the Copyright Act in exceptional circumstances; programs make them susceptible to patent by virtue of law, the author retains a right to prevent monitoring.41 distortions or impairments of his work.35 Largely, software patents are deployed as an Open source licensing implements in a controlled indication of the company’s standing; they also manner the spirit of moral rights. Both GPLv2 and provide enhanced collateral and negotiating power in GPLv3 recognize the right of attribution subject to the corporate arena. Threat of software patents does contractual provisions. Other licenses too carry not dent large corporate houses’ indulgence in the similar provisions. The right of modification is not a open source arena; IBM, Phillips, Sony, and waiver of this right.36 Thus, this showcases the , to name a few, have express interests in open inherent conflict between the freedom which a source software development, nonetheless, these same licensee of OSS strives for, to change that work any companies maintain their traditional corporate way he pleases, and the desire of the original author to approach as well and continue to acquire software obtain proper attribution.37 Analogously, it also allows patents. However, software patents’ threat do have an a degree of control where an intentionally low quality intense moral and economic debilitating effect on VASUDEVA: OPEN SOURCE SOFTWARE PARADIGM AND IPR 515

individuals and small developer companies, which are be reluctant to freely release patents to the the real backbone of open source innovation and community. proliferation.45-46 A substantial amount of open source Thus, though certain successes have certainly been software has been affected by such patent threats and achieved, in motivating the industry towards patent removed from public space.47-49 ‘In effect, large sharing;56 still, despite this initiative at correcting corporate stakeholders have erected a fence around patent law in a similar manner as copyright law by the pieces of open source territory.’50 open source faction, it might be more difficult to

The open source community has made several achieve, and not gain a similar amount of popular effective forays to tilt the focus from building patent support. portfolios for corporate bulwarking, to emphasis on innovation in the technology sector. The open source Trademarks movement is shoring its resources to combat any The term ‘open source’ was not trademarked prior to its widespread popularity as a descriptive term potential threat through some pretty innovative 57 techniques viz. license provisions, creating patent referring to itself. However, open source developers pools, establishing databases and emphasizing showed considerable sophistication in their use of on proper prior art examination. Corporate goodwill trademark law, instead adopting certification marks to from some proprietary manufacturers too has been indicate if a particular software complies with the extended to the open source community in this respect, open source scheme, for e.g. the ‘OSI Certified’ mark which may have more to do with achieving versatility affixed by the Open Source Initiative for software in business models.51-53 complying with their Open Source definition. Additionally, though not registered, the term Through license provisions, the open source ‘Copyleft’ in itself has acquired a distinctive trade software approach seeks to extend the effect of the use. copyleft reciprocal obligation from copyright to Using certification marks as opposed to trademarks patents terming the concept as open patent gives recognition to the open source approach as movement.54 Thus, the software developer also grants opposed to a particular OSS product. This also avoids permission to users to practice the patents held by several hassles under trademark law like policing of him, when distribution of the software occurs. The the mark and ensuring proper attribution while work could be used as it is, or improved, in which allowing greater flexibility in usage and shifting equal case the patent improvement would have to be re- onus of responsibility on all the developers. licensed to the institution that holds the original patent, and from which the original work was Existing Contractual-License Protection and Open licensed. It also provides immunity to the licensees Source Software from infringement threats. The legal instrument for propagating the open While the core concept of application of the source philosophy and its interpretation and copyleft reciprocal obligation to patent law is application of IP laws is the license. The open source relatively straightforward, the practical difficulties are movement designed a counterintuitive licensing several. Firstly, there is a fundamental difference in system based on the same legal premise as proprietary the treatment of improvements under copyright law software but to different ends. Yielding IPR through and patent law. This is primarily because of the the means of licenses, the open source faction copyright owner’s statutory entitlement to control promotes functional freedom for software, for improvements i.e. derivative works of a copyrighted developers and users alike. Ultimately, the OSS work; a patent on the other hand does not afford any license is a specialized application of the conventional particular right to advances.55 Secondly, common law .58 copyright protection is instantaneous as from creation, Though open source proponents are in agreement but patent protection requires registration. Obtaining regarding the essential philosophy of the movement, patent protection on each improvement made would when it comes to transcending policy into practice, be extremely cumbersome and could effectively delay licenses tend to diverge on certain terms important to or bring the OSS project to a halt.67 Thirdly, unlike collaboration. To avoid conflicts, and promote copyright, obtaining patents is a tedious and modulated growth, definitional standards have been expensive process; hence, a lot of developers would set by prominent open source proponents like the 516 J INTELLEC PROP RIGHTS, NOVEMBER 2012

Open Source Initiative and the Free Software term is much more enveloping in effect due to its Foundation. Certain licenses like the Mozilla Public monopoly nature. However, though the potential for License, have set standards not by laying out harm is great, it does not mean that ideas contained in definition parameters but by commercial practice. software patents should not be protected.63 Patents in Licenses may have different terms, but they must each software are a relatively new development on the comply with the core principles propagated by these intellectual property front. As with other standard setting bodies in order for the software to be developments, the rough edges of this development termed open source software. too need to be smoothened out. Rather than This standard setting initiative is commendable, yet completely eliminating patents as a medium of many complications remain. The licenses have protection for software, efforts should be focused on a different approaches. Many licenses have not been better system with higher standards of examination.64 updated in years to reflect current trends. Instead of complete radical substitution, mere Interpretation issues especially with different supplementation and rectification of the patent system jurisdictions exist leading to misapplication. Friction addressing these concerns is a possibility. exists in license interaction leading to compliance When open source supporters protest against software issues. Existence of several standard setting patents, an inevitable question that arises is whether organizations causes further impediments. copyright protection alone is adequate to protect Moreover, some critics are of the view that all computer software?64 Though the copyright regime has software licenses are vitally and intrinsically flawed as 31 its fair share of supporters, critics, think-tanks and instruments of open source software development. government bodies are largely of the view that copyright Contract law is perceived as a ‘stopgap measure’ to 31 law by itself is an inadequate mode of protection for patch broken copyright jurisprudence. The licenses software and could actually be much worse for the are criticized for attempting to privatize intellectual industry and open source.40 US Judiciary too noted this property law, enhancing transaction costs, causing deficiency.18 Primarily, copyright law by its very nature proliferation and confusion as regards interpretation 31,59 protects expressions and not the underlying ideas. In and application. On the other hand, certain open case of computer software, it transitions to protection of source factions repudiate the existence of a contractual the expression but not the underlying functionality.65 relationship altogether placing reliance entirely on 15 Hence, the essence of computer software is open to copyright law. analogous development. This in turn allows several It is undeniable that instead of a better license, a expressions of the same innovation to exist. Some critics better approach is required. However, for the time view this conflict as an opportunity to revisit copyright being, as with proprietary software, contract law is jurisprudence and redraw the lines to properly demarcate essential for the propagation of the open source model. authorship issues, and resolve the idea-expression

dichotomy, at least in context of software programs.12 Software: Protection and Management Debate is raging as regards intellectual property While some critics cite the need to revisit and software. Suggestions vary from application to intellectual property jurisprudence,66 others challenge non-application of property rights to software; from the very existence of property rights in software correct interpretation, to amendment to outright development.50 The open source movement is a viable replacement of property laws with alternative models mode of software development, and their argument of sui generis software protection.60-62 Fuelling this that property rights should not apply to software may debate is the current success of open source software, hold merit. However, the real question is whether arguably without the conventional mode of software absence of property rights would be incentive enough protection. for software development. Moreover, a fundamental As stated earlier, the open source faction staunchly question to be answered is whether the open source opposes the current software patents regime. movement would be an adequate replacement? The Essentially most open source concerns emanate from open source community may not be ideally suited to ineffective use and regulation of the patent system provide the requisite innovation impetus. Although coupled with legal issues in context of software many contributors appear to participate in open source patents. A major bone of contention is the patent term software development for reputational rewards, it is which though considerably shorter than the copyright unclear whether such intangible benefits are a VASUDEVA: OPEN SOURCE SOFTWARE PARADIGM AND IPR 517

sufficiently effective motivation to drive large-scale will force both the open source and proprietary efforts.31 More than initiation, sustaining of such models to coexist.39 ‘Given the uncertainties in projects is a big question. The debate has its share of determining which kinds of endeavours can be safely supporters and detractors.63 Moreover, open source left to open innovation, it is likely that a dual system penetration is not sufficient and an overnight radical will be operative in many technological fields.’66 change could well mean disaster. Additionally, the Hence, a harmonious construction of software software industry is not an island; any change in the protection is the best option. protection regime, would have a cascading effect on several other industries. Furthermore, what needs to Conclusion be considered is that if there is a complete Software programming tends to be based on de replacement of the proprietary structure with the open facto standards and the case of de facto standards is source model, then the corresponding business model that they find favour only upto the time they are the would alter the nature of the software industry, from best available solution. Earlier computer that of software creation to software servicing.64 programming was done on one-to-one basis and cyberspace was yet to be established as a medium of It cannot be denied that a complementing stance connectivity. However, that is not the case anymore. needs to be acquired to accommodate the OSS model. Software is rarely individually tailored, but mass- The open source regime has acquired a stature which produced, and the existence of the makes cannot be just brushed aside as an anomaly. Complete global collaboration extremely easy. Furthermore, removal is not a good option; the open source model programming itself has become relatively easier. Not provides a good counterbalance in the software taking advantage of such a scenario would amount to industry to the proprietary model. Besides preventing restricting infrastructural growth. Open source market dominance and monopoly it also allows for development has become a practical alternative to greater variety; companies are able to combine the 64 more traditional proprietary production schemes for best of both worlds. Also, regularizing the open software.31 The open source faction is using the open source model allows its proper regulation. At the end source method to renegotiate and properly channelize of the day, it is not desirable to establish an exclusive electronic information governance. system where only one of the policy models exists. There is not only intra-cooperation but also inter- Adjustments would be needed to harmoniously cooperation with other development models. Open integrate the open source model with the proprietary source shares an antagonistic relationship with model in the intellectual property regime. Any regime proprietary software only as regards the mode of not doing so ‘runs the serious risk of remaining a development. Otherwise, it is true that it can act as a vestige of twentieth-century IP regimes focused on substitute for proprietary software in certain cases, but rights of exclusion rather than enabling and it is also true that in other case it makes the proper encouraging rapid software development.’31 functioning of proprietary software possible. Instead of focusing on the debate as a means, the Discussions as regards proper governance of focus should be on the ends. The need of the day is ‘constructed commons’ have emerged lately.68-71 Most efficient and cost effective software. It is irrational, importantly, as private control and open access not to encourage any capable production mode, coexist on the Internet, their interplay needs to be whether it be proprietary or open source. Both have properly regulated.72 To make open source a sound their positive attributes and their shortcomings. innovation development program requires concerted Moreover, it is difficult to assess whether either action from all involved stakeholders. model would be more successful without the In view of increased government interest in OSS, the influence of the other. What needs to be realized is time is ripe for concrete actions to be taken to properly that as things currently stand, both the modes cannot define the parameters of the OSS regime. Though the be done without. ‘Essentially, both the approaches governments in various countries have set up require balancing of commerce and user committees, the main focus of such committees has independence. To completely dismiss one approach in primarily been on procurement and deployment.4,72 favour of the other is to abandon a mature method of Other technical factors in software management which fostering innovation for another that is still have ancillary effect on determination of improvements immature.’67 Furthermore, courts and market inertia management in software should also be addressed. 518 J INTELLEC PROP RIGHTS, NOVEMBER 2012

Moreover, the governments need to promote and lobby for overhaul of the software protection development of open source software in their regime altogether. respective jurisdictions, especially amongst universities The fact that the open source concept has evolved and technical institutes. to the broader ‘open innovation’69 concept and the

A complementing stance would have to be taken by same model is being applied in other fields, the legislature too.66,69,73 Though litigation and private prominently biotechnology, bioinformatics, genomics, enforcement on its own accord is capable of resolving and policy modelling, raises the issue that there might issues with copyright law, however, given the be several simmering grievances with the application efficient management of resources that is required, of current IP laws to emerging fields. Hence, it would legislative reform is preferable.5 Furthermore, the be desirable to review the IP system in the light of present times necessitate that certain guidelines be community development model as a whole. laid down addressing properly the treatment of OSS by IP laws. Some in the open source community may Acknowledgment likely be ‘horrified’ at the idea that legislature might Research for this paper was done at the Max step in to try to regulate open source. However, the Planck Institute for Intellectual Property & argument that open source practices are covered by IP Competition Law, Munich, Germany and the Indian laws and licensing practices and do not need any Law Institute, Delhi, India. The author expresses special catering to be countered. Legislative history is gratitude to the institutes for extending facilities for rife with instances where IP laws have been amended the research. to address specific commercial issues, the popularly called Sonny Bono Act or the Mickey Mouse References Protection Act in the US (The Copyright Term 1 Raymond E, The Cathedral & The Bazaar: Musings on Extension Act, 1998) is a prominent example. Linux and Open Source by an Accidental Revolutionary (O’Reilly Media, Massachusetts, USA), 1999. Given the popularity and wide-spread usage of 2 World Intellectual Property Organization, Open OSS, decided litigation is relatively lacking in this source, http://www.wipo.int/patent-law/en/developments/- field due in large part to pre-litigation negotiation, the open_source.html (17 April 2011). 3 Reger C, Let’s swap copyright for code: The computer high transaction costs associated with open source software disclosure dichotomy, Loyola of Los Angeles licensing enforcement, and the public policy pressure Entertainment Law Review, 24 (2) (2004) 215. to respect open source programming rights.74 Still, the 4 Evans D and Reddy B, Government preferences for Judiciary has made some initial forays in the field of promoting open-source software: A solution in search of a OSS. It is not just OSS, but certain concrete problem, Michigan Telecommunication Technology Law Review, 9 (2) (2003) 313. guidelines in general regarding software, need to be 5 Brown C, Copyleft, the disguised copyright: Why legislative laid down, especially regarding derivative works in copyright reform is superior to copyleft licenses, University software and distribution and access to software both of Missouri - Kansas City Law Review, 78 (2) (2010) 749. in the physical and the virtual medium. 6 Davidson S and Levi S, Open Source Software: Critical issues in Today’s Corporate Environment (Practising Law Community involvement has been the leading light Inst, NY), 2005, p.169. as regards formation and management of the open 7 Street F, Law of the Internet (Matthew Bender, NY), 2009, source philosophy. It turned into an extra-judicial arm §14.05. 8 The Free Software Foundation, Frequently asked questions and filled a perceived gap in software management about the GNU licenses, http://www.gnu.org/licenses/gpl- which was not being addressed thus leading to the faq.html (22 April 2011). founding of OSS. However, despite the growing use 9 Red Hat Inc v The SCO Group, No. 03-772, Plaintiff's and acceptance of OSS, the legal rights afforded to Complaint, Count II, 74-77 (D. Del. 4 August 2003), open source developers remain largely unknown.5 http://www.groklaw.net/pdf/RedHat-1.pdf (19 Dec 2011). 10 Potter S, Opening up to open source, Richmond Journal of Furthermore, considering the dynamism of the Law & Technology, 6 (2) (2000) 24. software field, the involved community too needs to 11 Patel N, Open source and : Inverting copyright? change its outlook and evolve with the times. The Wisconsin International Law Journal, 23 (1) (2005) 781. emergence of splinter factions within the open source 12 Dusollier S, Open source and copyleft: Authorship reconsidered? Columbia Journal of Law & Arts, 26 (3) philosophy bolsters this argument. It is true that the (2003) 281. open source groups lobby against patent protection for 13 McManis C and Seo E, The interface of open source and software, but they need to take a more proactive role proprietary agricultural innovation: Facilitated access and VASUDEVA: OPEN SOURCE SOFTWARE PARADIGM AND IPR 519

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