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Journal of Intellectual Property Rights Vol 17, November 2012, pp 511-520 Open Source Software Paradigm and Intellectual Property Rights Vikrant Narayan Vasudeva† Indian Law Institute, Bhagwan Dass Road, New Delhi 110 001, India 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 laws 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 public domain; 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, license, proprietary, copyleft, open patent 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 Software Distribution (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 ‘Free Software’ or ‘Libre Software’ or any other.2 Need for correct nomenclature distinction __________ † Email: [email protected] only arises when the licenses 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 Trade Secret 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 Free Software Foundation (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, copyright 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 Red Hat 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 Linux 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
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