Journal of Intellectual Property Rights Vol 12, May 2007, pp 303-313 Copyleft: An Alternative to Copyright in Computer Software and Beyond Nirmalya Ganguly† The WB National University of Juridical Sciences, NUJS Bhavan, 12 LB Block, Sector – III, Salt Lake City, Kolkata 700 098 Received 29 November 2006, revised 9 April 2007 The paper deals with the development, which has provided a new perspective towards looking at traditional copyright law, viz. the institution of copyleft. By highlighting the myriad facets of copyleft licenses (typified by the GNU General Public License, the brainchild of Richard Stallman), the author illustrates the fact that the notion of copyleft bases itself upon the institution of traditional copyright whilst aiming to eliminate many of the ‘vices’ that are said to plague the latter. The paper examines intricacies of copyleft licenses, focussing in detail upon the criticisms levelled against it by proponents of proprietary software (essentially, business versus liberty argument), as well as contrasting it with open source software, another crusader in the war against established copyright law. It is author’s conviction that although its ambit is yet to be canvassed in a court of law, copyleft is surely a wake-up call for proprietary software manufacturers; it would encourage further research and innovation by the latter. Moreover, in order to pose a substantial challenge to copyrighted software, the bickering between the proponents of copyleft and open source software will have to cease. Significantly, copyleft licenses have of late extended to spheres beyond software as well, primarily in the arts (where licenses can be custom-made). Although it would be presumptuous to speak of copyleft as the death-knell of conventional copyright, it can surely serve as an alternative, and such a situation would only benefit society in general. Keywords: Copyleft, copyright, General Public License (GPL), GNU project, proprietary software, source code, Free Software Foundation/ Open Source Initiative, Creative Commons Organization, Free Art License. ‘…Software sellers want to divide the users has always accompanied it, viz. that it provides a and conquer them, making each user agree convenient route for the opportunistic to fill their not to share with others. I refuse to break coffers. They could obtain such software unrestricted, solidarity with other users in this way.’1 make changes, many or few, and distribute the result For Richard Stallman, the rapacity of proprietary as a proprietary product.3 In this manner, the raison software (and the broader institution of copyright that d'être of the public domain would be in danger of was inextricably intertwined with it) was a good deal being rendered otiose. Hence, one would have to more than he could bear. For him (in fact, for a none- come up with another mechanism which would too-insignificant fraction of the populace), it was accomplish a like purpose, sans the aforementioned nothing to save a domineering and officious lacuna. interference with freedom and liberty itself. In the Initially, computer software was not the golden words of Walter Benjamin, ‘The art of our time can goose that it is today-in fact, it was often thrown in expect an even greater effect as it is designed to be gratis with the hardware. But the scenario was to reproducible and as it renounces favouring the undergo a sea change with consecutive advancements original work’.2 And here, it was felt, was a curious in technology. As the US software industry paradox-a stymieing of the very values that were burgeoned, bonhomie came to be replaced by secrecy. envisioned to be upheld. It was in retrospect of these What happened was this-source codes (a set of very circumstances that a movement took shape, one instructions humanly readable and hitherto released which irrespective of which side of the fence one opts with the software for use as desired) came to be to occupy, has indubitably succeeded in exposing blocked by software companies, a lucrative avenue, frailties in established institutions and beliefs one since users would have to knock on their door each could have hitherto barely imagined. time a new feature was desired or a bug was to be The ‘public domain’ counter argument to copyright exterminated.4 Unable to access a printer source code is not alien to many. However, one lingering qualm at the MIT computer laboratory and commanded to _______________ sign nondisclosure agreements by the Institute vis-à- 5 †Email: [email protected] vis his work, Stallman had had enough. He bade MIT Published in Articles section of www.manupatra.com 304 J INTELLEC PROP RIGHTS, MAY 2007 goodbye in 1984, a man convinced to the core in his concept may be noted from the fact that the system of motto of ensuring freedom in software come hell or copyleft actually rests upon the institution of high water-it was now, as the cliché goes, a matter of copyright, whilst attempting to rid itself of many of principle for him. He wrote and distributed the GNU the fetters otherwise imposed by the latter. (which expands to ‘GNU’s Not UNIX!’, a fallout of What is obvious is that the system of copyleft (in his vexation following the eponymous operating fact, the broader idea of open source software in system having bottled up its source code) Manifesto, general) has resulted in clamours of dissent voiced by 6 in which he laid down his ideals of ‘free software’. the proprietary software industry (led naturally by The GNU General Public License (GPL) was Microsoft).10 However, an important impediment to conceived, which was the edifice of the the widespread success of the movement would be the aforementioned definition of free. A separate category ideological schism that exists amongst the various was created (with the GPL as its most prominent categories of open source software, with the result member) and termed ‘copyleft license’, an ingenious that a truly concerted endeavour to strike at the very play on the word copyright, precisely indicative of roots of the established ideals, which support 7 what Stallman resented. proprietary software, has not quite materialized.11 What began as an immediate reaction to the However, as the following study shall seek to supposed high-handedness of AT&T (the distributors illustrate, what has been achieved is by no means of UNIX) has in course of time assumed imposing insignificant, and all the internal squabbles aside, dimensions, setting off a veritable deluge of debate Microsoft and its brethren have indeed been given a and discussion. The GNU GPL, i.e. copyleft licenses, very definitive wake-up call, which they have not would appear to provide all virtues of the public been frightfully pleased to receive. domain minus the drawback earlier alluded to. Stallman encouraged programers to keep software in The Fundamental Concept the public domain by using copyleft and the GPL, Copyleft is ‘an agreement allowing the software to which permits users to run, modify, copy and be used, modified and redistributed freely on the distribute software, provided the source code is conditions that a notice to this effect is included with available.8 The impetus behind his efforts consisted of it’.12 The essence of the copyleft movement was ideas as hallowed as liberty and freedom of explained by its patriarch himself, who opined that the expression, which he believed were being held objective of the entire process was to ensure that hostage by the existing regime. However, what his copyright law served ‘the opposite of its usual struggle required was a certain momentum, which purpose: instead of a means of privatizing software, it was to be provided by a brilliant young Finn, Linus becomes a means of keeping software free’.13 Torvalds. Indeed, the development of Linux in 1991 In the realm of software too, the practice of gave a new dimension to the movement, the ambit of blocking source codes riled many, who protested that which shall be explored in due course. proprietary software was undermining the very values There is little dispute to the fact that software is that were envisaged to be upheld by the idea of entitled to copyright protection as a ‘literary work’, as copyright. Arguments such as the personality of the per Sections 2(o) and 14 of Indian Copyright Act, creator as well that of reward were frowned upon, and 1957, Section 102(b) of the US Copyright Act, 1976, a separate norm was sought, which would foster ‘the Article 10 of the TRIPS or any other like provision, prosperity and freedom of the public in general’.14 albeit its very unique nature has at times proven to be Thus, the birth of copyleft. a trifle difficult to reconcile with established notions The license issued with the software in the latter’s of the law of copyright, what with courts in various original state assumes a sort of omnibus form. It is in decisions in this aspect making an effort ‘to fit the tune with Stallman’s vision that software ought to be proverbial square peg in a round hole’.9 It is in this ever-dynamic; having the source code available context that the discussion has assumed significance. would facilitate regular modifications and Although, the realm of copyleft licenses is no longer improvements, which would serve the interests of the confined to the domain of computer software (as shall public in general, instead of leaving all the control in be seen), it cannot be gainsaid that the genesis of the the hands of manufacturers. Accordingly, copyleft movement lies here. The uniqueness of the whole