India: ‘Free Software’ – Myth or Reality!!

Last Updated: 7 June 2004
Article by Yashojit Mitra and Tushar Ajinkya

The functions performed by a computer program depend on its ‘source code’ (‘code’). The code is an integral part of a computer program and is, therefore, heavily protected. He who possesses the code controls the software, and thus software companies spend fortunes trying to protect the code, so as to restrict other programmers from modifying such software, which would otherwise decrease the economic value of the software. Such software, wherein users/licensees do not have access to the code, is referred to as ‘closed source software’. Owners of such software rely on the protection afforded by intellectual property statutes for protection of the same.

Radically opposed to this concept of ‘closed source software’ is a school of thought, the followers of which believe in promoting development of technology by making the code freely available to the public, thereby allowing them to read, modify and share such code, and thus facilitate the development of a customised product to meet specialized needs of the users. Such software is referred to as ‘open source software’ (‘OSS’).

It is pertinent to mention that there is no legislation in India which regulates the use and distribution of OSS. However, various institutions/groups have prescribed certain guidelines for the use and distribution of OSS, so as to maintain the concept of free distribution, and avoid commercialization of such software.

It is ironic that although OSS aims to freely allow copying, modification or distribution of OSS, the method by which this is ensured, is by utilizing intellectual property licensing to ‘regulate’ how the code is handled in ‘cyberspace’!

In order for a program to be classified as OSS, the Free Software Foundation (a popular institution promoting OSS) has prescribed certain guidelines under the GNU General Public License (GPL). These guidelines mentioned in the GPL may be applied to the OSS by attaching a notice to the OSS specifying these terms, which must broadly comply with the criteria mentioned hereunder.

  • Availability of Source Code: The license must grant worldwide, royalty-free, non-exclusive, perpetual, non-sublicenseable license and must keep the ‘code’ of the program ‘open’ and available to anybody intending to use it.

This clause emphasizes the fact that in order to enforce the conditions mentioned above it is necessary to bind the licensee contractually by means of a click wrap agreement, which although held to be enforceable in the United States (Specht v. Netscape Communications Corp., October 1, 2002; I.Lan Systems, Inc. v. Netscout Service Level Corp., January 2, 2002) has not yet come up for discussion in the Indian Courts.

  • Free Distribution: The license must freely allow copying and distribution of verbatim copies of the OSS in object code or in an executable form. A licensee may also charge a fee for the physical act of transferring a copy of the OSS.

The concept of OSS signifies "free as in free speech, not as in free beer" (Richard Stallman, developer of the GPL) necessarily implying that the concept of OSS does not mean ‘zero direct cost’ but signifies ‘freedom from constraints’. The aforementioned condition also makes it evident that the licensee is not allowed to claim proprietary interest or charge any license fee for distribution of the OSS.

  • Derivative Works: The license must allow modifications to the original OSS or any portion of it, thus forming a work based on the OSS and also allowing such modifications to be distributed at no charge at all under the terms of the license.

Thus the OSS could be distributed from programmer to programmer and modified according to their needs on the condition that such improvements must be freely distributed without any attempt to privatise the original OSS.

  • Redistribution: Each time the OSS is redistributed, the recipient must automatically receive a license from the original licensor containing all the rights conferred by the original license.

The rights attached to the OSS must apply to all persons to whom the program is redistributed without the need for execution of an additional license by them, i.e. the terms and conditions of the OSS are effectively attached to the software and cannot be severed from the code. Thus even though the license allows licensees to modify the code, the modified files when redistributed must carry prominent notices carrying the details of the modified files alongwith the date of such modification. This information allows persons accessing the code to form opinions about the programmer’s skills and allows programmers to develop their reputation. Further, such a clause assists in preventing licensees from closing software by indirect means, such as requiring a non-disclosure agreement, etc.

Bruce Perens, the author of the first draft of the Open Source Definition (available at also prescribes certain guidelines for use of OSS, which are worth mentioning when dealing with the terms of distribution of an OSS.

  • Attribution Rights: Any person creating any derivative work under the OSS is entitled to retain all copyright, patent or trademark notices from the code of the original OSS and inform recipients of the program that ‘he’ had modified the original OSS.

This condition makes it evident that any person making modifications to the original OSS would be entitled to all intellectual property rights in the modified portion of the original OSS.

  • Geographical Restrictions: If the use/ distribution of the original OSS is restricted in certain jurisdictions due to the operation of any patents or copyrighted interfaces, the original copyright holder placing the program under this license may add explicit geographical distribution limitations excluding the countries in which such restriction is placed.

It is necessary to understand that, the license grants various rights to the licensee rather than restricting him, hence a few restrictive terms in the license cannot render the whole of the license ‘unconscionable’.

  • Warranty: The original software is provided under this license on an "AS IS" basis and without warranty, either express or implied, including, without limitation, the warranties of non-infringement, merchantability or fitness for a particular purpose.

Although, the software is provided on an ‘AS IS’ basis, a person could offer warranty or maintenance services for the OSS and charge for the same.

It is evident from an analysis of the various conditions of the license that, such conditions are aimed at preventing those outside the open source movement from succeeding in ‘closing’ open code, i.e. restricting ‘licensees’ from claiming intellectual property rights over what is freely available code.

Further, if the modified OSS is a work itself based on an original OSS, the distribution of such modified OSS must necessarily be on the terms and conditions imposed by the license and there may not be any attempt to control the distribution of derivative works based on the original OSS. However, the distribution of identifiable sections of the modified work which are not derived from the original OSS, and which are considered to be an independent and separate work in itself, are not bound by the terms and conditions of the license and are capable of commercialization by the programmer independent of the original OSS. Thus, the intent of the Open Source license is not to claim rights of persons who are developing a program through their own skills and intellect, but to control the distribution of derivative works based on the original OSS.

As the OSS is freely available, companies need to be cautious in their approach of allowing their employees to use such software, so as to reduce the scope of erroneous use of such software. They need to take steps to restrict the use of OSS through documented policies and agreements and educate their employees through trainings and lectures about the various implications arising from such OSS.

The first OSS litigation has commenced in the USA, where a lawsuit has been filed by the SCO group against IBM on March 6, 2003 wherein the plaintiffs allege that IBM misappropriated SCO's UNIX operating system trade secrets by disclosing those trade secrets in the Linux operating system and sharing them with the open-source community.

Recently in India, a ‘public interest litigation’ has been filed in the Jharkhand High Court, wherein it has been prayed that the Government of India and the State of Jharkhand be directed to implement OSS, which is cheaper instead of the more expensive closed source software.

Although the outcome of the aforementioned litigations are not known, they definitely promise to go a long way in the development of the open source movement in India.

Thus, before use and/or commercialization of any OSS, it is important to understand and appreciate the implications arising from such OSS to safeguard or further business potential, as the case may be.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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