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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions