ipr project (2)

Universiy Of Petroleum And Energy Studies, Dehradun

Open Source Code and Software Issues in IPR

Special Focus on the issues related with Open Source code and the Open Source Softwares

Ria Tandon3/30/2015

Open Source Code and Software Issues in IPR 2015

UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

BA.,LLB.(HONS). ENERGY LAWS

SEMESTER

ACADEMIC YEAR: 2015-16

IPR

PROJECT SUBMISSION: Open Source Code and Software Issues in IPR

Under the Supervision of: Miss. Anuradha Nayak

Name:

1.Ria Tandon

500017689

R-450211080

©Ria Tandon, University of Petroleum And Energy Sudies, Dehradun, 2015.


INDEX


Serial Number Contents1. CHAPTER 1- INTRODUCTION

i. Open Source Code ii. Licensing for Open Source iii. Digititalised era of Open Source

2. CHAPTER 2- OPEN SOURCE CHARACTERISTICS

i. Copyright with respect to copyleft movementii. Open Source as a Conceptiii. Open Source vs. Proprietary

iv. Re-distribution of the Derivative Work

3. CHAPTER 3 – INTELLECTUAL PROPERTY RIGHTS

RELATED TO SOURCE CODE AND SOFTWARE BASED

ON IT

i. Copyrightii. Patent Protection

iii. Trademarks

iv. Moral Rights

4. .CHAPTER 4- License Issue i. General Public License ii. Types of License as Contract iii. Cases

5. CHAPTER 5- OWNERSHIP AND INTERNATIONAL ISSUESi. Ownership Issuesii. International Issues

6.CONCLUSION


ABSTRACT

Open Source Code is a software –development model wherein this model provides for the free access to any person in the world to access the coding behind it and develop something new ont his idea . The best way is to understand by taking the example of Wikipedia under which there is a possibility for a person to edit it according to their own wishes. So there are many issues with respect to the open sources which is dealt in this project by the author in detail.

The author argues in this project by narrowing the focus on the need for the license which is the General Public license as that with respect to the open source software. The author emphasizes onto the difference which is there with respect to the proprietary aspect of the right and that of the open source code. There are different types of licenses which are involved with respect to the open source code and the others. There are different analysis which is given with respect the growing market of the open source which is taking place in the developeing countries like China, India and Brazil and how the economic development is takin place in these countries. There is a special focus which has been paid to that of the various type of various heads of that of the intellectual property rights and its connection with respect to open source code.

The scheme of research would be that of Empirical research method. Basing on the theoretical analysis of the published peer reviewed and the journal article

KEYWORDS: Open Source Code, Intellectual Property Rights, General Public License and Wikipedia



SYNOPSIS

CHAPTERISATION

CHAPTER 1- INTRODUCTION

i. Open Source Codeii. Licensing for Open Source

iii. Digititalised era of Open Source

CHAPTER 2- OPEN SOURCE CHARACTERISTICS

i. Copyright with respect to copyleft movementii. Open Source as a Conceptiii. Open Source vs. Proprietary iv. Re-distribution of the Derivative Work

CHAPTER 3 – INTELLECTUAL PROPERTY RIGHTS RELATED TO SOURCE CODE AND SOFTWARE BASED ON IT

i. Copyrightii. Patent Protectioniii. Trademarksiv. Moral Rights

CHAPTER 4- License Issue

i. General Public License ii. Types of License as Contract

iii. Cases

CHAPTER 5- OWNERSHIP AND INTERNATIONAL ISSUES

i. Ownership Issues



ii. International Issues

CHAPTER 6 – SCENARIO IN DIFFERENT COUNTRIES

i. Brazilii. China

iii. India

CONCLUSION



CHAPTER 1- INTRODUCTION

i. Open Source Code

Open Source Code is a software –development model1 wherein this model provides for the free

access to any person in the world to access the coding behind it and develop something new ont

his idea . The best way is to understand by taking the example of Wikipedia under which there is

a possibility for a person to edit it according to their own wishes. This provides for an access

wherein there is a free license and access to the blue print as well as the subsequent

improvements2 to it. The term open source earlier was used with some different name. There was

hold of the open source with the increase in the use of it .

Though this refers to the use by the general public or available to it with respect to its original

design. The main aspect of thid code is for the programmers to improve upon it and this source

can be used so that these changes can be made available to the community at large. Though this

is not the case , this code is available to the public under some kind of license. The uses for this

code is that it is used as the model for things like open-source for the appropriate technologies 3

as well as the technologies like photovolt as well as the open source drug discovery which is

present.

ii. Licencing for Open Source

Under the concept of the other products which has its basis on that of intellectual property with

respect to the software is generally used with respect to its use and not for being sold.

Eventhough it is seen with the opern source it can be used freely but when it comes to its

distribution then it cannot be done without a licesnsing agreement. There are many types of

1 Neil Gandal, A brief look of the economics of open source software, also available at http://www.voxeu.org/article/open-source-software-issues-and-trends. 2 Gerber,A; Molefo; Vander Merwe, Documenting open –source migration process for re-use,also available at http://dl.acm.org/citation.cfm?id=1899503.1899512. 3 Joshua M Pearce, The Case for Open Source Appropriate Technology, also available at https://www.academia.edu/1517361/The_Case_for_Open_Source_Appropriate_Technology.


http://dl.acm.org/citation.cfm?id=1899503.1899512

http://www.voxeu.org/article/open-source-software-issues-and-trends


licenses which are there with respect to the open source. There is the concept of General Public

License , under which it is necessary that the soucrce code should be made available. This

license is restrictive in its nature hence there is a problem with respect to the developing of a

commercial product.

The projects which are running onto the commercial operating system that are bassically

tageted towards the developers are lesser restrictive4 in nature while those which have the target

as the users use more of a end user is considered to be more of restrictive in its nature.

iii. Digititalised era of Open Source

With respect to the role of open source in that of the digital era . It is seen that this aspect has its

bounds beyond the aspects of software. There is a concept of creative commons which to rescue

with respect to help the creators of that of the content to be granted various levels or the stages of

copyright permisssion with respect to it. The degree of the copyright which has been granted

differs from either that of the all rights which are reserved or o that of the some of the reserved

rights and wherein there are no rights which are preserved. Wikipedia started with the concept of

that of the GPL license for that of the tets and then it adopted the concept of that of th creative

commons.

Creative commons is a concept where there is a non profit organization which has its

headquarters in California , United States . The main work of the organisation is to provide for

the creative work to be provided so that it can be provided legally5 to the people on the internet .

This organization provides for the license for the copyright which is known as the creative

commons license which is provided for the public at free of charge. There is such negotiation

wherein there is a negotiation between the copyright owner who is the licensor and that to

between the licensee , wherein there is no commercial type of negotiation being involved with

respect to it. Wikipedia also uses this kind of license . The main aim of this organisation is on the

4 Neil Ganal, A brief look of the economics of open source software, also available at http://www.voxeu.org/article/open-source-software-issues-and-trends. 5 https://wiki.creativecommons.org/FAQ.


http://www.voxeu.org/article/open-source-software-issues-and-trends


lines of that of the copyleft movement6, wherein it is seen that the public domain will move from

all the rights reserved to that to the some rights reserved.

The open source movement was started during the time of that of the institutes as like that of

Massachusetts Institute of Technology and the other being the University of California, Berkely.

Then there was introduction of general public license as already been explained then came the

Mozilla Public License. So it does not mean that a person can have access to the open source but

it dependends mainly upon the the body which sets up the standard with respect to the project

which is being superheaded7.

6 http://playingwithsid.blogspot.in/2008/12/introduction-to-copyleft-movement.html.7



CHAPTER 2- OPEN SOURCE CHARACTERISTICS

i. Copyright with respect to copyleft movement

The main idea with respect to that of the open source software movement was that there should

be enabling of that of the free use it by everyone , be it developers and the other being the users.

The four freedom aspect which has been provided for are the use of the software without any

stopping or that of the restriction, the software being rewritten , modification of that of the

software by rewriting it and the liberty to share the software and the gloal use of the product with

respect to the granting of the alterations rights as well as the right with respect to the permiting

the distribution8 of it.

Public domain is a way out wherein there is a possibility to have the freedom with respect to the

access. Internet is that public domain where it is possible to have the easy access. The mode

which provided for freedom had some problems when it came to the point with respect to the

modification by the users and then the asserting of the rights basically the propriety rights.There

was a distinction which developed with resppect to the rights of that of the users and the

developers.The example with respect to this would be the x windows license9 wherein both the

developers as well as the users had the right with respect to the freedom use.

With the introduction of that of the GNU project there was an introduction of the idea of

Copyleft which means that the agreement allows the software to be used as well as modification

and the redistribution along with a notice10 to it. The General Public License is granted or is

8 Stallman condensed, available at http.//www.gnu.org/events/rms-nyu-2001-summary.txt.Also see http://www.gnu.org/events/rms-nyu-2001-transcrpt.txt.9 Ibid.10 See The Concise Oxford Dictionary of current English (Oxford University Press, Oxford).



being carried on by GNU EMACUS and the other types of free software foundation softwares

which are there.

This aspect of lisensing system as provided for under the copylet system allows for the software

to be kept free , hence here copyleft uses the copyright laws with respect to keeping the software

to be free insteading of going for privatization so here copyright does the opposite11 of it as to

what generally it does. Under the concept of that of copylefting it is seen that the rights of that

of the author is recognized but some of the rights which are generally being given under the

copyright is given away12. Under this kind of licenseing it is allowed for the user when making

changes to the orgninal work not to atttribute to the original author. Hence this works allows for

the free availability of the work as well as tha to the derivatives13 to use with respect to the user

public which is there . The source code of that of the software which is there provides for the

users the right to use it which is based on the four freedoms , provided by the cocept of that of

copyleft.

ii. Open Source as a Concept

There are some criterias which have been set up with respect to the right of that of the

distribution so that it qualifies as that to be an open source.

Free Redistribution

According to this the license cannot restrict any party with respect as to the selling or that of the

giving of the software as that to being a component of that of the aggregate software with respect

to the distribution which contained the programme from that of the different sources. This

license would not require as that of any of the royalty or the source.

The Source Code

11 See , The GNU Project, also available at http://www.fsf.org/gnu/the-gnu-project.html.12 See Michael Stutz, Applying Copyleft to non-software information, also available at http://www,gnu.org/philosophy/nonsoftware-copyleft.html.13 See Mathias Strasser, A new paradigm in intellectual property law?: The case against the open source, Stanford Tchnology Law Review, 4,2001.



The programme under should have the inclusion of the source code and there should be allowing

of that of the distribution of that of the source code as well as that of the compiled form which is

there. Wherein it is seen that the product has not been distributed as to along with that of the

source code then there must be the means for the publiction as that of the obtaining of the source

code which is not more than that of the reasonable cost of reproduction.The downloading is to be

there via the internet which incurs no charge as such.

The Author’s Source Code

There can be a restriction with respect to the distribution of the source code if the license allow

for that of the distribution of the form which is modified as being the patch files with the aim of

midifying the program as that during the build time . The license should allow for the

distribution of that of the software which is made by the way of the modified way which is

there .

License Distribution

The rights which are there along with the programme should be given or provided to all of the

users for whom the programme has been redistributed wherein there is no need with respect to

execution of that of the additional license which is there for the parties.

Technology Neutral License

There is no availability with respect to that of the provision of that of the license prediction for

the individual technology or that of the style of that of the interface.

License should not affect other Software

Under this head it is stated that during the distribution of the software which is distributed along

with that of the licensed one so there should not be any restriction with respect to it.

Derived Work



There should be a provison with respect to the license to be allowed with respect to the

modification as well as for the derived work , hence distribution should be allowed as of the

same terms which are there with respect to the original software.

Non discrimination Approach Towards the Person or the Groups

There should not be any discrimination as that to towards the person or that to towards any of the

group.

License should not be product Centric

Under this the rights which are being provided with respect to the program should not show or

have dependence towards the software being an important party14 of that of the software

distribution. If it seen that the programme which was extracted from that of the distribution and

is provinded under the guidelines of that of the program’s license , so under this all parties who

receive the redistributed programme will have same rights as to which is given under the aspect

of the original software.

iii. Open Source vs. Proprietary

With respect to the proprietary software the main aim is to have the profit factor as there is a lot

of research as well as efforts are invested into it . The proprietary is guarded under the strict as

well as different conditions which are persisting as to throughout the world. Proprietary software

does not allow for the modification, redistribution, copying as well as redistribution without the

provider knowing about it.

So under this concept only the proprietary owner has been given the right with respect to the

modification as well as the developmental works on that over the software as it is done in the

case of that of the MICROSOFT. Hence all the companies which develop the software which is a

proprietary software , in that case the company’s have the right with respect to the source which

here becomes the property of that of the company15.

14 Open Source, Also available at http://www.opensource.org/osd.html.15 Lowry Paul Benjamin, Stephens Jackson, Making money with open source software business initiatives’ also available at papers.ssrn.com/so13/papers.cfm?abstract_id=669241-24k.



Under the PSs the customer who purchases the software has to pay for the service support as

well as for that of the updates which are there. Under this only those people work who have a

money related interest in it. While as that under the open source software the scenario is different

it is developed by signle person and not a group or that from different people in the different

areas and the parts of the world. Companies also at times emply people from the different parts

to work and then they release it in the market without any intention of gaining any money out of

it.

The open source software has gained its share in the market. During the year of that of the 1950s

and the 60s there was a free distribution of the softwares. The idea of that of the proprietary was

introduced by the Richard M Stallman, wherein there was also the introduction of the General

Public license. With the coming of the internet there was an introduction of that of the

coordination between the developers who are there all around the world. The suitable example

with respect to this will be that of the Linux whose new version being Linux Torvald.Then there

is an introduction of that of the Red Hat Software16 , which has become a fast growing as well as

profitable company, which is involved in the selling of the boxed version of the Linux , wherein

they have a customer base of around 7.5 million.

Under the concept of the OSS, the software is considered to be free in market as well as the

source code is also distributed with it in the market. The holder has also the right to make

modification to it as well as distribute . The modification which is made to the OSS shall fall

under the ambit of OSS and will have nothing to do with the proprietary.

The main argument which is there in favor of that of the OSS is basically the lesser cost factor

which is present. There is no need for a license when it comes to the OSS as well as the there is a

need for a minimal requirement with respect to the investment factor which is there . The aspect

of that of the profit making is absent in the case of that of the OSS that is why there is a closure

of that of the many OSS in the United Sates17. Thought it is stated that the entry level is lowwith

respect to the OSS. When it comes to the OSS then it is seen that under it there is a provision for

the experimentation unlike that of the PSS wherein there is restriction to that of the

experimentation in this .

16 Available at http://www.redhat.com/products/linux.html.17 The Linux uprising, Business Week Online, March, 26 th, 2015.



The Software in the case of that of the Properietary is gaining its ground in India. While when it

comes to that of the OSS then it is seen that there is little development as it is seen that the there

is very limited time frame as well as there is concentration onto the signle person . There is more

dependence on the volunteers with respect to this kind of work.

iv. Re-distribution of the Dervative Work

Derivative work basically means the wrok which is already exiisting like for say there is any

sound recording, fictionalization and the musical arrangement. The work which includes the

editorial revision, modification and others as wel as the original work which is there for

authorship is regarded to be derivative work.

When it comes to the products, which is the work being derived from that of the software license

which is found to be under that of opn source. Under the concept of GPL it is seen that the very

aspect of the open source goes against it. There is the snatching of that of the copyright aspect of

that of the proprietary software dealer who developes the software which is new and is derived

from that of the open source product. There is taking away of the right of copyright of that of the

commercial software dealer or that the programmer which is there , as the developer developes

by his efforts a software product which has been derieved as that from the open source code, is

retained with the developer. With respect to the distribution of that of the product (which is a

derived work from that of the open source software, is given the right to be distributed only by

the way of GPL or the other open source licenses) the developer has to make sure with respect to

the source code be available to he other people for free of cost. The prson who makes the source

code available for free gives up his right of that of having any proprietary right over it. There is

also no compensation provided with respect to this aspect and there is exploitation of the labour .

There is an element of destabilization which takes place for the commercial world wherein there

is free use of the product wherein the users do not pay for the product18.

18 See Microsoft Press Pass- The Commercial Software Model, also available at http://www. Microsoft.com/presspass/exec/craig/05-03sharehouse.asp.


http://www/


CHAPTER 3 – INTELLECTUAL PROPERTY RIGHTS RELATED TO SOURCE CODE

AND SOFTWARE BASED ON IT

i. Copyright



Under the copyright aspect there is distaste towards the propriterary model of the protection

under the copyright law. Those who are the believers in that of the OSS are of the view that there

is a restriction when it comes to the aspect of that of the benefit part with respetc to that of the

proprietary aspect to it. Hence so as to solve this problem there was the view from the proponent

of the open source with respect to the copy right protection of that of the softwares. The viwers

of that of the OSS regard the interpretation of the legal foundation on which the proprietary

aspect is based upon. The modus operandi with respect to that of the open source is that there is

copyright software , modification of it it as well as the free use of it at large.

The major problem which is seen with respect to open source is with respect the allegation of

that of the proprietary arena has its infiltaration in that of the open source code in propriterary as

well as vice versa. In the case of SCO VS. IBM litigation19 , wherein SCO had claimed IBM had

ilegally had gone for incorporation of that of the SCO’s propriterary UNIX code into that of the

open source code Linux operating system , hence every user as well as the copyright infringer

was supposed pay the licensing free for it. The court rules that the lines of codes in that of the

Linux kennel was infringed. In the case of that of Microsoft , wherein it was forced on with

respect to the contribute code ( Hyper-V drivers) with espect to Linux so as to avaoid any of the

GPL violation which exists, when it was found out that Microsoft had the incorporation of that of

the GPL licensed components into that of the mentioned Hyper –Vdrivers.

ii. Patent Protection

Open source is seen by its proponents with resect to the patent jurisprudence with respect to the

software context and regard it to be some thing which is underserving in nature and they

disregard the elemet of that of the incentive to be wrong in their view as such. The arguments wit

respect to the patent is both of being procedural as well as being theoretical.There is a challenge

19 McGowan D, Intellectual Property challenges in the next century:Legal implications of open source software, University of Illinois Law Review, 2001(1)(2001)241.



with respect to both the non obviousness factor20 for that of the building block programme which

are there as well as the non disclosure of that of the source code21 which takes place. The

theortical aspect or the argument is with respect to that there is a creation of that of the

anticommons ideas as against that of the large building blocks22 which are there. There is a threat

when it comes to software patents to that of the open source code . If it is seen that there is an

infringement of that of the proprietary programme then there is a stop with respect to the OSS

model.

Though it has been seen that big companies as like that of IBM, Sony , Samsung and the other

like Nokia had keen interest with respect to the open source model but it was found out that these

corporate houses wanted to maintain the traditional approach with respect to acquire the patent

rights which are available to them. It is seen that there has been a great impact with respect to the

OSS by the patent threat which it is supseptible to as well being removed from that of the public

arena. So as to combat the problems like these many of the corporate houses have been

interested to extent the open source community some relief so that there is achieving of the factor

of versatility with respect to that of the business model which is there.

iii. Trademarks

The term that is open source was earlier not included under the ambit of that of the trademark.

However it is seen that the open source developers haved showed a lot of sophistication when it

comes to that of the trademark law, there are ideas like that of the certification marks wherein it

is seen that the particular software which is there is in compliance to that of the open source

scheme which exists which is regarded as the OSI certified when there is a software complying

along the lines of that of being Open source. Though the terms Copyleft is not offficcially

recognized but when it comest the distinctive aspec it acquires the distinctive trade use .

These certification marks which has been as discussed above are basically providing for the

recognition to that of the open source approach as when compared to the OSS PRODUCT.

20 Hass D, A gentlemen’s agreement assessing the GNU GPL and its adaption to Linux, Chicago-Kent Journal of Intellectual Property, 6(2)(2007)213.21 Evans D , Software Patents and open source: The battle over intellectual property rights, Virginia Journal of Law and Technology, 9(3)(2004)10.22 Rowe K, Why oay for what’s free?: Minimizing the patent threat to free and open source software, John Marshall Review of Intellectual Property Law, 7(2)(2008)595.



Hence there is avoidance with respec to many of the hassle which may arise undet the trademark

law like that of the polcing of the mark and the other being that for the allowing of that of the

flexibility with regards to the usage as well as the shifting of the onus of the responsibility that

shall be onto to the developers.

iv. Moral Rights

With regards to the moral it is of utmost importance with respect to the open source software.

The concept of that of the open source has its basis mainly onto the reputation reward rather than

that of the monetary rewards which is there in the case of the proprietary rights. These rights

have its control jurisdictionally or that with respect to the limits which are there for the rights. It

is seen in some countries that there is a provision with respect to the denying of the moral rights

while as that the waiving away of the moral rigts which is there for the software authors. When

we talk in context of India then we see that under section 57 of that of the Indian Copyright Act

there is the moral right protected with respect to the back up copy purposes and the others.

Legal system which is there in place with respect to the recognition of that of the moral rights

provides for an alternative way for that of the protection when it comes to OSS. If there is a

violation with respect to the open source license terms then it is regarded to be equal to that of

the violation of the developer’s moral right which is there in place. Section 14 of the Copyright

Act provides for the restriction with respect to the modifiers action and in cases of that of the

exceptional circumstances there is a possibility by that of law wherein the author can protect

his/her work from being distorted..

The individuals and the small developers are at a disadvantage since the open source softwares

are being afffected by th epatent threat and are aslo being removed from the public domain on

the internet since many of the large corporate stakeholders which are there are forming a fence

as that to round the open source territory which is present there.



CHAPTER 4- License Issue

iv. General Public License

This license is widely used all around the world and the terms with respect to this license is

with respect to the retransferring of the software . The merits of this license is with respect to

that of the viral as well as the pass through license terms. This license is used because it is

associated with that to Linux . This license is considered to be most problematic as well it is



not very clearly drafted. The interpretation which has been set up with respect to this license

is to that by the Free Software Foundation, which states the commitment of that of the idea of

having a free software.

The provision of that of the GPL is in direct contact with respect to the commercial as well as

the political context by syncing it with Copyright , which is basically firstly the copyright,

secondly the distribution terms which are there and the distribution of any of the programme

which is there. It is bconsidered to be a very powerful license since there is mixing of the

GPL code along with that of the new code with respect to the derivative work wherein there

is an obligation for providing for the source code for free. It is the responsibility of the

developer who takes up the source code as under this license are supposed to provide for the

source code of that of the entire prouct which is there.

v. Types of License as Contract

It is noted that the FSOS includes some of the standard forms with respect to that of the

contractual agreement which persists. This has been stated in various places as well as the

effect of that of the agreement and the provision wherein the conduct is known for that of

the acceptance of that of the license. The language which suggests such are as follows:

2.1 Free Academic License:

Under this there is a distribution of that of the copies of the original work or that which is

derivative in nature. There should be reasonability23 with respect to the efforts as that to

under the circumstances under which there is a need to have the express assent of the

receipt with respect to the terms of the license. Nothing in the license or wherein there is

a written agreement as between the Licensor and the Lisence , there is a grant of the

permission as to the creation of the derivative work based which is based on that of the

original work as well as to exercise the rights which are given that to under section 1.

Hence the righst which are granted under section 1 shows the acceptance of the license

with respect to the terms and the conditions.

2.2 Apple Public Source License

23 See Open Software License, ver. 2.1 (2004).



Under this License , it has been stated that the person should be careful before he/she

downloads . If the person downloads or is using the sofware then the person agrees to that

of the terms of the license which is present there. If the person does not agree to the terms

which is given with respect to the license then it should not be downloaded.

2.3 Common Public License

The programme which is accompanying is provided for under the terms of the common

public license. With respect to that of any of the use, distribution or that of the

reproduction of that of the programme has the acceptance as well as the agreement from

the side of that of the receipient.

2.4 Eclipse Public License

The programme which is accompanying in here is provided that with respect to the or

that of under the terms of that of the eclipse public license. It states that if there is any

distribution or that of the reproduction of that of the programme has the inclusion of that

of the receipient’s acceptance of that of the agreement.

vi. Cases

3.1 With respect to the case of Specht v. Netscape Communications Corp24. it was held

that the terms of the license which was relating to the free Netscape Software had not

become the party of that of a contract. While the could in this case did not state that the

idea with respect to the online assent is not regarded to be enforceable in nature, the

manner of the presentation din’t let the transferee understand the reason with respect to

the downloading of that of the software would be resorted as the contract .

3.2 In the case Register.com v. Verio25, Inc. the second circuit court stated that the

whether the company which had downloaded from that of the site name Register.com the

factual data with respect to the domain name registration was found to be bounded by the

terms of that of the contract as it restricted the use of the information right. The License

terms were found to be enforceable even though it was seen that there was no express

assent to that of the terms. Here, it was stated that with respect to the downloading of the

24 Specht v. Netscape Communications Corp ., 306 F.3d 17 (2d Cir.2002) . 25 Register.com v. Verio, Inc., 356 F.3d 393 (2

nd Cir. 2004 ).



data was considered to be an assent to the terms. Also the site was used by the company

frequently so the license was being used with respect to the privilege .

CHAPTER 5- OWNERSHIP AND INTERNATIONAL ISSUES

iii. Ownership Issues

With respect to the free and the open source tries to control the aspect of the copyrights as well

as the patents which are in association of that of the software. The main question which arises is

with respect the question is as to who is the real owner of that of the software since there is a

contribution from the side of a large number of the participants. According to the law of that of

the copyright the right vests into the person who is the owner of that of the copyright , whether it

is the person who is the orginal owner or the person wh receive the transfer of it. In case of that

of the absence of that of the employee with respect to the work for hire context , the law

considers that the person who creates the material is the real owner with respect to it.

The point being that under the copyright ownership aspect is vested with that of the creative

author but there are problems even with respect to the transaction between the two parties and

the problem increases when it is found out that for some of the FSOS products the contributors to

this is quite large in numb



“Given the growing expanse of users working collaboratively, today’s Linux is less a seamless

piece of coding than a tapestry of hundreds of hackers’ contributions.26” Which was stated by

one person27 or the author . These hackers have their copyright for that of their own work, even if it is seen that there is no need for them to assert the right as to against any person. It is seen that after the modification has been made then there is no waving28 of the right by anyone with respect to that of the copyright.

iv. International Issues

As the free software distribution model grows throughout the world legal notions such as

“jurisdiction” and “choice of law” will highlight the legal nature of the GPL and its international

enforceability. Some of these issues may turn on whether we see the GPL as a license or a

contract? To date in this article, these words have been used almost interchangeably. The

distinction is important. Contract law is subject to the vagaries of various national approaches.

For instance, some legal systems require a contract to be in local language for enforceability. A

copyright license enables products to come under intellectual property laws that have been

harmonised by international treaties such as the Berne Convention for the Protection of Literary

and Artistic Works, WIPO Copyright Treaty (1996) and TRIPS. Along with the principle of

national treatment this means that copyright law is (arguably) more widespread and uniform than

contract.

Chief counsel for the Free Software Foundation, Eben Moglen, suggests the GPL is a copyright

license not a contract. “Licenses29 are not contracts: the work’s user is obliged to remain within

26 Glyn Moody, The Greatest OS That (N)ever Was, www.wired.com/wired/5.08/linux_pr.html.27 This assumes, of course, that they have not separately transferred the copyright back up to a central group monitoring or controlling the “official” version of the software. 28 See, e.g., Storm Impact, Inc. v. Software of the Month Club, 13 F.Supp.2d 782 (ND Ill. 1998); Scanlon v. Kessler, 11 F.Supp.2d 444 (S.D.N.Y. 1998) (Photographer had voluntarily provided the corporation with thousands of photographs for website; withdrawal of consent and subsequent use was infringing).29 It could be argued that if the GPL is a mere licence it can be revoked at will leaving developers on a free software platform at the mercy of the licensor: J Malcolm, “Problems in Open Source Licensing” (2003) <http://www.ilaw.com.au/public/licencearticle.html>



the bounds of the license not because she voluntarily promised, but because she doesn’t have any

right to act at all except as the license permits30.” In the only case to consider enforcement of the

GPL requirement to publish source code, he made the following claim:

The GPL is a very simple form of copyright license, as compared to other current standards in

the software industry, because it involves no contractual obligations. Most software licenses

begin with the exclusive rights conveyed to authors under copyright law, and then allow others

access to the copyrighted work only under additional contractual conditions. The GPL, on the

other hand, actually subtracts from the author’s usual exclusive rights under copyright law,

through the granting of unilateral permissions. When a work of copyrighted software is released

under the GPL, all persons everywhere observing its terms are unilaterally permitted all rights to

use, copy, and modify the software. Because these permissions are unilaterally given, users who

wish only to use the software themselves, making copies for their own use, or who wish only to

make derivative works for their own use, do not have to “accept” the license, because they have

no reciprocal obligations under it31.

An analogy can be made with land to demonstrate Moglen’s view. I can give you a license to

walk on my land. This requires no counter obligation from you. It remains a unilateral

permission not a contract. But such a view ignores the obligation to publish source code on a

developer wishing to distribute a derivative work based on a GPL product. This obligation makes

the license more like a contract.

30 Eben Moglen, “Free Software Matters: Enforcing the GPL, I”, 12 August 2001, [http://emoglen.law.columbia.edu/publications/lu-12.html] 25 January 2002. See also: B Fitzgerald, “Digital Property: The Ultimate Boundary?” (2001) 7 Roger Williams University Law Review 237; B Fitzgerald, “Commodifying and Transacting Informational Products Through Contractual Licences: The Challenge for Informational Constitutionalism” in CEF Rickett and GW Austin (eds), Intellectual Property and the Common Law World, Oxford, Hart Pub, 2000, 35.31 Progress Software Corp. v. MySQL AB 2002 U.S. Dist. LEXIS 5757. The “Declaration of Eben Moglen in support of defendant’s motion for a preliminary injunction on its counterclaims” made on February 22 2002 is found at: [http://www.fsf.org/press/mysql-affidavit.html].



CHAPTER 6 – SCENARIO IN DIFFERENT COUNTRIES

iv. Brazil

It is seen that the Software industry of this country is around same as that of India . After

the liberalization which took place in the year of that of 1990’s the market32 became

competitive internationally. It is now seen that BRAZIL is the seventh largest market of

that of software in the world. In the year of that of 2002, the software sales were around

the US4 5 billion. Then in the year of 2003 it increased by 7.7 US $. Brazil has an import

of that around 1.5 to 2 billion dollar and the 98 % of that of the sales have its

consumption in its own domestic market which is present. There is a rise with respect to

that of piracy but the IPR protection is rising with respect to it and because of this there is

also an increase in that of the sales as well.

v. China

The 10 th five year plan of that of China explains as to how important the software

industry has been with respect to the national security as well as that of the economic

progress of it. As there is a strong policy in place that is why there is a abundant growth

32 Brazilian Economy,also available at http://www.comnet-it.org/pubs/newletter/jan98/brazilian.html.



with respect to the software with an average growth being that to around that of 30 % of

the sales. The process was increased more with respect to China joining the WTO as well

as liberalization taking place.

In the year of that of 2000, the Ministry of Information Industry had gone for subsidizing

the Chinese Academy of Science for the commercialization of the Red Flag Linux, which

is the Chinese version of Linux33, this step was taken so as to attain self sufficiency so as

to protect the national security. In the year of 2002 , Microsoft entered into an agreement

with that of the Chinese Government with respect to the restricted use of that of the

source code of the Windows operating system . Then Microsoft became more acceptable

within the government. Piracy and the counterfeiting is considered to be largest problem

in China . Around 60 % of the computers in China run onto the Microsoft Windows but

piracy leads to 5% less revenue than what it would be if the customer pays for the newly

sold computers.

iii India

India34 showed a growth rate of that of 30% and the year of that of 2004 , there was a

reach of 3.63 million units which were registered and then there was 20% growth in the

year of that of 2005. There is a growth because of the consumption on the part of the

industries like that of telecom, financial services, BPO as well as banking and others. The

working with respect to the operating system in the desktop is around 74% of that of the

windows while there is 2% of Linux.

The OSS initiative which the Indian Government has taken with respect to the open

source to develop free software is established. There is also a growing attraction as that to

towards the Linux usage in India . India has been successful with respect to sharing of the

source of Microsoft in India. There are also new inventions like that of the Hindi

GNU/Linux distribution which is called the Indix. There are also talk with respect to the

introduction of linux even in the research institutions or the establishments which are

33 Linux , also available at www.redflag-linux.com/eindex.html.and www.bsw.gov.cn.34 Saxenian Anna Lee, Global from emerging markets: An engine for growth,2003,p.30 .


http://www.redflag-linux.com/eindex.html.and


there. The best way to transform the developing ecomony into that of a knowledge

economy can be by the way og use of the software.

CONCLUSION

Open Source Code is a software –development model wherein this model provides for the free

access to any person in the world to access the coding behind it and develop something new ont

his idea . The best way is to understand by taking the example of Wikipedia under which there is

a possibility for a person to edit it according to their own wishes.

Under the concept of the other products which has its basis on that of intellectual property with

respect to the software is generally used with respect to its use and not for being sold.

Eventhough it is seen with the opern source it can be used freely but when it comes to its

distribution then it cannot be done without a licesnsing agreement.

Creative commons is a concept where there is a non profit organization which has its

headquarters in California , United States . The main work of the organisation is to provide for

the creative work to be provided so that it can be provided legally35 to the people on the

internet . This organization provides for the license for the copyright which is known as the

35 https://wiki.creativecommons.org/FAQ.



creative commons license which is provided for the public at free of charge. Then there number

of concepts which has been discussed by the author from different types of licenses besides the

GPL which are related to the open source software then also the analysis based on that of the

cross country analysis shows as to what all things are there with respect to the growing demand

of the open sources like for say linux and it is resulting into growing of the economy of the

developing countries which are there.


ipr project (2)

Documents

open source software

dehradun open source

open source characteristics

abstract open source

software issues

ownership issues

international issues

software development