LEGITIMACY OF OPEN SOURCE

SOFTWARE

Submitted By:

Antara Rastogi, Rhea Matthai BBA LLB Batch:2013-18Div: A

USE OF LEGAL DATABASE INTERIM PROJECT

SYMBIOSIS LAW SCHOOL, NOIDA

What it is ? What it is not?

Why it is? Where to go with it?

WHAT IS MEANT BY OPEN SOURCE? Open source refers to a computer

program in which the source code

is available to the general public for use and/or modification from its original design.

The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

In general, open source projects,

products, or initiatives are those that embrace and celebrate open exchange, collaborative participation, rapid prototyping, transparency, and community development.

Based on accessibility and responsiveness

Most products are neither open nor closed

.

Degree of openness depends on judgment and control

Derived work of many developers

FEATURES

POPULAR OPEN SOURCE SOFTWARES

WHAT IS AN OPEN SOURCE SOFTWARE?

FEATURES

Free distribution Must have “source code” Derived work Intergrityof the Author’s

Source Code No Discrimination

Against Person or Groups No Discrimination of

Fields Endeavour

Open-source software (OSS) is a computer software with its source code made available and licensed with a license in which the copyright holder provides the rights to study, change and distribute the software to anyone and for any purpose. Open-source software is very often developed in a public, collaborative manner. 

ADVANTAGES OF OSS Free Distribution:

The license does not restrict the party from selling or giving away the software. The license does not require a royalty or other fee for such sale.

Lesser hardware costs:

The hardware power consumption is lesser for OSS compared to other servers like windows. Hence a cheaper and a older hardware could be used to get the desired results.

No vendor lock in:

open source software give its users more freedom and we can affectively address some of the disadvantages like lack of portability and expensive license fee vendor lock-in.

Integrated management

OSS use high end technology like common information model and web based enterprise management this would result in efficient administration.

Abundant support:

The support for OSS is freely available and can be accesed though online communities.

DISADVANTAGES Not totally free;

Though the software is free, we will incur maintenance and installation charges in addition to profession advise and support.

Not easy to install:

Not all open source soft wares is easy to install and setup although its becoming more useful all the time.

Not easy to use for end users:

Many people who activate the open source community are developers not end users of the software so it may not be helpful to the advantage person looking for basic help.

OPEN SOURCE SOFT WARE DEVELOPMENT MODEL

OPEN SOURCE LICENSING A license demarcates the rights and obligations that a licensor grants to a licensee. Open

source licenses grant licensees the right to copy, modify and redistribute source code or content. These licenses may also impose obligations.

TYPES OF LICENSES AVAILABLE

CLOSED SOURCE: When source code is not open but kept a secret.

eg. Proprietary Software like Adobe Acrobat

Reader, MacAfee, Apple Software OPEN SOURCE: a type of license for computer software and other

products that allows the source code, blueprint or design to be used, modified and/or shared under defined terms and conditions

eg. Mozilla, Open Office.org, Wikimedia

COPYLEFT 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 else may have any rights in that software; there is a new word for it: they ‘copyleft’ it. Before a software may be copylefted, its source code must be disclosed. A disclosed source software can be copylefted or non-copylefted.

"Copyleft licenses" require licensee to license specific developments (if they are not restricted to internal use) to anyone under the original license. This ensures that everyone who profits from open-source software will offer their developments to the developer community.

CYBER LAWS

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 important aspect of Cyber laws.

INTELLECTUAL PROPERTY RIGHTS

'What is worth copying is prima facie worth protecting' 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.

Copyright Industrial property . 15

SOURCES OF LEGITIMACY OF OSS

Licensing and each individual license may consist of a valid, specialized application of contractual norms, either in a stand-alone framework or representing the enforceable allocation and re-distribution of property law entitlements in computer software.

Licensing as a system of information governance may be a custom or norm that has been effectively adopted as law and that should justify enforcement of any particular license

licensing as private governance may operate effectively as a system of private ordering of social arrangements.

THE OPEN SOURCE LICENSE AS A SPECIALIZED SOFTWARE LICENSE

The open source model is ultimately a specialized application of the general purpose conventional software license.

First, both “open source” and “closed source” licenses derive their legal legitimacy from the copyright owners’ claims to own and control all aspects of computer program codes that are used by individual end users or developers. Second, both forms of license assert comprehensive statements of the scope of the users’ rights and obligations with respect both to the code and to the copyright in the code and limit the users’ rights only to those granted in the license itself, rather than to any rights supplied by the Copyright Act or other law. A software license, whether open or closed source, is a soup-to-nuts statement of the scope of legitimate behavior by a user or consumer of that software with respect to both the artifact itself, the information contained in that artifact, and the copyright, if any, that applies to that information

DIGITAL MILLENIUM COPYRIGHT ACT (DMCA)

The Digital Millenium Copyright Act provides civil remedies and the possibility of criminal penalties for two related acts. First, the act of “overcoming” a “technological measure” that “effectively controls access” to a copyrighted work is prohibited under Sec1201(a)(1)(A).21 of ‘circumvent a technological measure’ means to unscramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” 22 “A technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”

FREE SOFTWARE, GNU AND GPL

Richard Stallman of MIT propounded with the help of lawyers, drafted the General public licence (GPL). It contains a condition that copylefts software. 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 programmes. However an LGPL (earlier known as Library and now Lesser General Public License) can be integrated with almost any kind of software including proprietary software. The GPL does not require you to release modified version. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization. But if you release the modified version to the public in some way,

then the GPL requires you to make the modified source code available to the programme's users. Thus, the GPL gives permission to release the modified programme in certain ways and not in other ways; but the decision, whether to

release it or not, is up to you.

LEGITIMACY OF OPEN SOURCE SOFTWARE Open source software development is a production model that exploits ‐

the distributed intelligence of participants in Internet communities. This model is efficient because of two related reasons: it avoids the inefficiencies of a strong intellectual property regime and it implements concurrently design and testing of software modules. The hazard of open source is that projects can ‘fork’ into competing versions. However, open‐source communities consist of governance structures that constitutionally minimize this danger. Because open source works in a distributed environment, it presents an opportunity for developing countries to participate in frontier innovation.

FUTURE OF OSS Linus Torwald wrote in a autobiographical book ‘Just for Fun: the Story of an Accidental

Revolutionary’.

‘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 won’t be excluded from its development.’

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. It’s still the same old mantra: Make Love, Not War, except on a slightly more abstract level.

So many people still believe that the only good software available is that which is found on a shelf in a store. Everything you do in one way, shape, or form is being influenced by open mechanisms. One day soon, as far as software is concerned, it will be open.

CONCLUSION Open source software offers various advantages like the ability to

reduce costs and development time, or to avoid being dependent on a single vendor. It is therefore to be expected that more and more companies and institutions will start using open source software. There is however some risks associated with doing so.

It's important to mention that an immediate switch from proprietary software development to Open Source development would not be a wise decision. The changes in concept are massive, and prematurely adopting this model would likely impact negatively on the economy in the short term. Rather, gradual adoption to Open Source development is recommended. It is therefore recommended to carefully study the license agreement and to make an assessment of the risks associated with these conditions.

One should always check whether the own application is clearly separated from software under the GPL. And of course compliance with the license conditions need to be checked. With a careful application of the license conditions, it is possible to benefit most from using open source software while minimizing the risk.

REFERENCES http://opensource.org/ http://www.w3.org/Status.html http://eu.conecta.it/paper/Advantages_open_source_soft.html http://www.iusmentis.com/computerprograms/opensourceso

ftware/opportunity-threat/

Citations

Madison, M. J. (2005). The legitimacy of open source and other software licenses. University of Pittsburgh School of Law Working Paper Series, 15.

Von Hippel, E., & Von Krogh, G. (2003). Open source software and the “private-collective” innovation model: Issues for organization science. Organization science, 14(2), 209-223.

THANK YOU