This article is written by Rupali Lekhi, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.
Table of Contents
Introduction
Have you ever wondered how the most popular and commonly used applications in the world today have been developed? How has technology taken over our lives so easily? How have banking transactions become so simple? Has a single programmer contributed to this change or is this a result of a collaborative effort? Most of the unprecedented innovations that have changed the way technology is used today is a result of open source software. Facebook, Snapchat, Instagram, Twitter, Linux Operating software are all inventions created as a result of sharing and development on open source.
What is open source software?
Open source software (OSS) is a platform used by programmers worldwide enabling them to share their work with each other for promoting innovation and invention of new technologies. In open source, the work can be shared either in source code or/and in object code. A source code is a human readable code that is developed in different programming languages such as Java, C++, while an object code is the conversion of the source code into binary form or executable code and cannot be understood by humans. Organizations encourage the use of open source as opposed to proprietary software. Open source promotes innovation of new technologies alongside collaborative learning between different organizations. Proprietary softwares is usually more expensive and time consuming than OSS. This is because the organization developing a particular software would have to invest time and energy on creating something that is available on open source.
In order to regulate the use of open source software, Open Source Initiative (OSI)[1] introduced open source software licenses that grant copyright, patent and trademark in software under ascertained terms and conditions. These licenses are classified as permissive and copyleft on the basis of the ‘free’ use and distribution of the software. The term ‘free’ does not mean free of cost but refers to the freedom to redistribute the works produced as a result of using open source under these licenses. The consequences upon violation of these terms and conditions may lead to avoidable litigations that can have humongous financial implications for corporations. In India, open source software licenses derive their validity from section 30 of the Copyright Act, 1957 which confers upon the owner of the copyright, the right to grant ‘any interest’ in the work. This means that the owner has the right to license all or specific rights in his work.
What are the types of open source software licenses and its latest trends?
Licenses can be broadly classified as permissive, strong or weak copyleft licenses. The most commonly used strong copyleft, weak copyleft and permissive open source license include GNU GPL (General Public License), LGPL (Lesser General Public License) and MIT license respectively. The recent trend in the use of open source licenses shows the continuing rise in the use of permissive licenses. These stringent terms and conditions of GPL have been one of the main reasons for its fall in use as against the permissive licenses. According to the data collected by White Source, 64% of the open source softwares use permissive licenses in 2019 with a 3% rise in its usage from 2018.[2] This is primarily because they are less restrictive and allows the user of the license to distribute the work under the same or a different license. It also gives discretion or freedom to the user to decide the mode of distribution of the work; whether in source code or in object code. Copyleft licenses on the other hand are restrictive in terms of redistribution, modification, publication of derivative work.
What are the rights granted under open source software licenses?
A copyright in an open source software license grants three basic rights: (1) Right of redistribution (2) Right to produce derivative works (3) Right of distribution.[3] The extent of applicability of these rights depends upon the type of OSS license used. It is mandatory for the users of copyleft licenses to distribute the copies of the work in source code and under the terms and conditions of the same license. This essentially means that any modified or unmodified work made by the user under this license must be distributed in source code under the terms of this license only and no other. This compels the programmer using a copyleft license to share his work with others in human readable form. For example, if a corporation uses GNU GPL and develops a modified version of the work, the corporation has to necessarily distribute the modified work further under GNU GPL. GNU GPL restricts its users to use binary form of distribution and mandates distribution in source form.
An important exclusive right granted as a copyright under OSS license is the right to distribute derivative works.[4] The determination of what constitutes derivative work if a very gray area. Every OSS license does not define derivative work. In general terms, it means any derived work created from an original work. However, Apache license defines derivative work as works that are not inclusive of works that are separable from the original work or works that merely have a link between them.[5] There is no definitive explanation of ‘derivative works’ which can help reduce the confusion around distribution of derivative works along with the risk of litigation that runs alongside in case of any violation of the terms of OSS licenses.
What are the consequences upon violation of OSS licenses?
While there are many benefits of using open source software licenses, the financial implications upon violation of its terms and conditions are huge. One of the most significant cases of copyright infringement in open source software licenses is the case of Google v Oracle. This case involved the copyrightability of JAVA API (Application Program Interface) names, a language created through the use of open source software. In 2005, Google successfully negotiated terms with Sun Microsystems developers of JAVA programming language for developing android operating systems and as a result used 37 JAVA API names. However, in 2010 Oracle sued Google for copyright infringement for using 37 JAVA API names after acquiring Sun microsystems, developers of JAVA programming language Google contented that it used JAVA API names only as a method of operation and it did not per se lead to development of Android. They further contended that the use of API names was covered under fair use provision. The actual programming that led to the creation of android was the coding done beneath the 37 API names because of the innovative and creative minds of the programmers at google. In 2018, the court rejected the fair use plea of google. However, Google filed a review petition before the US Supreme Court to review its decision.[6]
If the US Supreme Court denies Google’s fair use plea in the review petition it would not only be detrimental for Google but would also affect the software industry and corporations. Google will have to pay close to 9 billion dollars as compensation to Oracle and all those industries and corporations would be affected that are using Android.
Conclusion
The risk of litigation makes it extremely important to understand the terms and conditions and to assess and analyse the risk attached with using different types of open source software licenses. It is necessary for the user of the license to understand the compelling terms of a copyleft license such as GNU GPL prior to using it. Non-compliance with their terms and conditions can invite huge litigation costs that are detrimental to innovation and growth of a corporation. This may discourage the users of open source software and would be unfavorable to innovation and growth. It is necessary for the user of the license to understand the compelling terms of a copyleft license such as GNU GPL prior to using it.
References
[1] Open Source Initiative, About Open source Initiative, https://opensource.org/about.
[2]Ayala Goldstein, Open Source Licenses: Trends and Predictions,(White Source, 23 Jan. 2020) https://resources.whitesourcesoftware.com/blog-whitesource/open-source-licenses-trends-and-predictions.
[3] Joanne van Erp Montague Davis Wright Tremaine LLP, Copyright issues with open source software, (Dwt 07 Nov. 2011), https://www.dwt.com/files/uploads/documents/Presentations/11-11_Montague_OSSpaper.pdf.
[4]Joanne van Erp Montague Davis Wright Tremaine LLP, Copyright issues with open source software, (Dwt 07 Nov. 2011), https://www.dwt.com/files/uploads/documents/Presentations/11-11_Montague_OSSpaper.pdf.
[5]Apache License, Version 2.0, https://opensource.org/licenses/Apache-2.0.
[6]Ephrat Livn, US Supreme Court holds innovation in the balance in Google v Oracle, (Quartz 20 Nov. 2019), https://qz.com/1751975/in-google-v-oracle-scotus-holds-innovation-in-the-balance.
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