COPYRIGHT AND OPEN SOURCE LICENSING

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By Ritambhara Agrawal, Intelligere

Open Source

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Open source usually refers to a software that is released with source code

under a license that ensures that derivative works will also be available as

source code, protects certain rights of the original authors, and prohibits

restrictions on how the software can be used or who can use it. Open

source software code is publicly available and enables users to modify and

disseminate new code including their modifications. The fundamental

purpose of open source licensing is to deny anybody the right to exclusively

exploit a work.

Open Source

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Open source just doesn’t mean access to the source code. Open source software has to comply with the following criteria:

Free redistribution-means that the software/work should be freely distributable.

The license shall not require a royalty or other fee for such sale.

Source Code. Users must have access to the source code.

Derived Works. The license must allow for modifications and derived works and allow them to be distributed under the same terms as the license of the original software.

Integrity of the author’s source code should be maintained

Distribution of license

License must not be specific to a product

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Though FOSS is usually free in respect of price, yet when we talk about “Free and Open Source License”, “Free” does not necessarily means “Free” in respect of Price. “Free” connotes “Freedom”. The fundamental premise of FOSS is Freedom to use and run the program, modify it, redistribute the program with or without changes.

In FOSS we talk about “Freedom” in respect of,

Freedom to use the workFreedom to study the workFreedom to copy and share the work with othersFreedom to modify the workFreedom to distribute the modified and derivative work

FOSS are sometimes distributed gratis and sometimes for a substantial price. Program is free regardless of the price because users have freedom in using it.

Conversely at times a proprietary software might be given for free in terms of price, but this doesn’t make the said software a free software and doesn’t grant the “Freedom” of FOSS regardless of its being price-free. Whether these software are priced or not, the program is non-free because users don’t have freedom.

Definition of “Free” in FOSS

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Free Software Definition

The fundamental purpose of open source licensing is to deny anyone to exclusively exploit a work, the software. Main purpose remains that the work should reach a maximum of audience. At the same time, creators of the work are required to surrender all, or substantially all, of the rights granted by copyright to those entities that are capable of distributing and thereby exploiting that work.

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CopyrightCopyright is a set of exclusive rights granted to the author or creator of an original work. Copyright includes the right to copy, reproduce, distribute and adapt the work.

Registering a copyright is not a mandate. The moment a work is fixed in a tangible medium copyright comes into existence. But it is always beneficial to get the work registered, as its easier to prove in case of violation and infringement and damages can be quantified in a better way.

Copyright owners have the exclusive right to exercise control over copying and other exploitation of the works for a specific period of time. Anyone requiring to exploit and use any copyrighted work requires permission to use that work. Copyright owners can grant permission and grant license for exploitation of the work.

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Copyright

Copyright is granted to various categories of work, like, literary, artistic, dramatic and musical work. Ordinarily the author is the first owner of the work. Different rights are granted to different categories of work. Computer programmes are protected under copyright and are treated as literary works.

There are certain uses which fall under the domain of “fair use”. Copyrighted work can be used and exploited without permission and license under fair use premise. Some of the fair usage are, news reporting, criticism, research, commentary, teaching or scholarship.

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Copyright in SoftwareAll software is subject to copyright. The moment one saves code to a file, copyright law comes into existence. A software copyright is the exclusive right to control the rules for copying, exploiting, modifying, a work of software. Software copyright is usually used by proprietary company to prevent unauthorized copying of their software. Copyright holders can permit other persons to copy or modify their software. A copyright holder can sue for damages for any unauthorized usage of the copyrighted software product.

In addition to all the rights applicable to a literary work, owner of the copyright in a computer programme enjoys the rights to sell or give on hire or offer for sale or hire, regardless of whether such a copy has been sold or given on hire on earlier occasion.

Copyright in the software can either be assigned or licensed.

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Rights granted by CopyrightCopyright is literally, the right to copy, though in legal terms "the right to control copying" is more accurate. Copyright are exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if there is any violation of the copyright.

Copyright grants exclusive right to:To reproduce the work To issue copies of the work to the publicTo perform the work in publicTo communicate the work to the public.To make any translation of the workTo make any adaptation of the work

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Copyright infringement

Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright owner’s exclusive rights, such as right to reproduce or perform the copyrighted work, or to make derivative works. Copyright infringement occurs when someone uses a copyrighted product without permission and authorization from the author/owner of the copyright. Infringement also happens when the scope of rights granted under the license are exceeded or violated.

In case of any infringement of the copyrighted work, the author/owner of the copyright can initiate proceedings against the infringer. Copyright infringement is both civil and criminal offence. The copyright owner is entitled to remedies by way of injunctions, damages and accounts. The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-

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Copyright infringement in Software

Copyright infringement of software is the practice of unauthorized copying of the computer software. The author/owner of the copyright of the software has the exclusive right to grant and control the usage of its software product. Any act of someone using/exploiting the software without permission and license from the author/owner of the software is regarded as copyright infringement. Infringement in copyright software also occurs when the software is used outside the purview of the terms and conditions of the license.

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CopyleftCopyleft is a term used in respect of FOSS licensing which is used for copyright. Copyleft is a practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work.

The main idea behind copylefting the open source software was to not let the product fall into the domain of proprietary software. If open source software is put into public domain with no copyright, people can make the said software proprietary and it would defeat the whole purpose of open source freedom. Copyleft guarantees that every user has the freedom.

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CopyleftWhereas, copyright law has been used to withhold permission to copy, modify or distribute software, on the contrary Copyleft ensures that the project remains free, and all modified and extended versions of the program remains free as well.

Copyleft licenses are conditional licenses. Copyleft should not be equated with abandoning the copyright.

Proprietary software developers use copyright to take away the users' freedom; whereas, copyleft guarantees their freedom. That's why the name has been reversed from “copyright” to “copyleft”.

FOSS licenses are categorized as strong, weak or with no copyleft provisions. Non-copyleft licenses, also known as permissive licenses, allows those using the software to re-license it under any terms as they want. The most popular copyleft license is GPL. The most popular non-copyleft license is BSD style. These licenses place no restriction on licensing for modified works.

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Few Questions

As FOSS is usually distributed free of price, users usually have

questions regarding its copyright protection and damages in case

of infringement.

Whether FOSS enjoys copyright protection?

Whether copyright damages are available as work was made available for free?

Whether violator’s removal of attribution attracts

DMCA provisions?

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Open Source Software is subject to Copyright• FOSS being a free software doesn’t mean that it is not subject to

copyright. FOSS licenses are subject to copyright. The licensor owns the copyright in the software. The owner grants a generous license, that doesn’t mean that the owner surrenders the copyright in the software. FOSS should not be confused with public domain. FOSS has its own license and its use is subject to the applicable license. FOSS has different liabilities and formalities regarding copyright protection.

• All software is subject to copyright. The moment one saves code to a file, copyright law comes into existence. In FOSS as there are number of contributors contributing to the code, all of them have a right under copyright law. Open source licenses also rely on copyright law to enforce their terms and conditions of the applicable license. For instance, copyleft licenses impose a duty on licensees to share their modifications to the copylefted work under some circumstances. No such duty is imposed if the software is in public domain.

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When does copyright infringement occurs in FOSS Fundamental violations in case of FOSS licenses include;

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Copyleft in FOSS

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The strength of the copyleft governing a work is an expression of the extent that the copyleft provisions can be efficiently imposed on all kinds of derived works

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FOSS Licenses

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Can licensed software (modified or unmodified) be distributed that has been combined or linked with code covered by another licensing model?

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In case of violation of license, one can look for different measures for enforcement of the same. Before starting any enforcement proceedings one has to be sure to organize and gather all the information

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Few Things to keep in mind before taking any action against the violator

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Case Study

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Jacobsen v. KatzerAdvocates & Legal Consultants

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Busy Box CaseAdvocates & Legal Consultants

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Linksys MatterAdvocates & Legal Consultants

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Netfilte v. SitecomAdvocates & Legal Consultants

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Fortinet v. GPL• Fortinet11, a network security software firm, released an

application FortiOS, as a part of some of Fortinet's products. The binary code of FortiOS contained the source code of some of the GPL licensed code including parts of the Linux kernel, in an encrypted way. However, Fortinet has not made the source code and license text available when distributing the code as is required by the GPL.

Following an injunction from a Munich District Court, Fortinet released the source code of FortiOS under the terms of GPL.

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License Compliance Best Practices

Thank You !

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Q & A

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For more information, please feel free to drop a line at ritambhara@intelligere.in or visit http://www.intelligere.in