Copyright and Open Source Licensing of Software Work
Copyright law does not protect any particular idea. Rather, copyright protects only the expression of that idea.
Limitation to the expressions of an idea is the principal distinction between the applications of patent and copyright. Unlike copyright, a valid patent does not protect the expression of an idea but the underlying substance of it. For example, a patent applicable to a microchip protects not the expression of the chip itself, or the electrical diagram describing it, but the idea that given circuits can be organized and made to operate in a particular way. Because of their potentially vast scope, patents are construed more strictly, require a registration process, and last for shorter periods than copyrights. [1]
A copyright does not need to be registered to be legally effective.
The fundamental purpose of open source licensing is to deny anybody the right to exclusively exploit a work. Typically, in order to permit their works to reach a broad audience, and, incidentally, to make some sort of living from making works, creators 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.
Software work is both functional and dynamic. As a result, each program that is created presents two distinct types of value. The first value is its formal purpose as a database or its application. The second is a potential source of code for use in performing other functions. When a customer purchases software, he acquires, along with the physical copy of the software, the right to use the software for its intended purpose, such as may be patent search only.
Open source usually refers to 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.[2]
Open source cannot be defined on one single level. The definition changes with every person and perspective. If we asked Richard Stallman, Bill Gates, or Linux chairman, we might get very different answers. We can categorize open source meaning through the eyes of various user groups.
For Software users
For software users, open source means choice and freedom in obtaining perfect programs according to their needs. The choice comes from the huge amount of freely downloadable programs like Firefox from Mozilla.org or OpenOffice.org. All these programs can be downloaded for free.
For Programmers
Apart from learning new things, a successful project in an open source initiative can mean fame, recognition, and even money in some cases. For developers, open source is a software development methodology founded on the virtues of collaboration, incremental evolution, and working code and constant source of innovation and problem solving.
For Commercial Software vendors
These use Open source according to their market strategy and/or operational needs. Most commercial software vendors love open source like Linux or the MySQL database when it helps make it easier to sell their products.[3]
For Entrepreneurs, Investors, etc.
Yahoo, Amazon, and Google; all use of open source. A growing number of venture-funded companies are built using open source or offer services related to open source. This is so, mainly because of cost savings associated with patent filings and the research work and open platform for problem solving and related issues.
For Technology Transfer offices
Open source breeds innovations and further research. It additionally provides for the much needed funds in certain special cases where premium additions might be sold. It encourages more and more researchers to make a name in the direction.
Copyright Law and Open source
Open source software is fundamentally grounded in the copyright law. Under
- copy the work;
- make derivative works;
- distribute the work;
- perform the work; and
- display the work.
These rights are subject to certain limitations, such as rights of "fair use" which includes the use of a work for purposes of criticism, comment, news reporting, teaching, scholarship or research and does not constitute infringement of the work.
Another important concept in Copyright law is that of “Derivative works”. The U.S. Copyright Act (17
"a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work".
37 CFR 201.26 defines public domain computer software as software which has been publicly distributed with an explicit disclaimer of copyright protection by the copyright owner.
A valid copyright license applies to a body of work and must assert at least one restriction. A copyright license that states no restrictions implicitly grants all rights, including rights to use, modify, distribute, etc. Most proprietary software copyright licenses assert restrictions on use (including definitions of "fair use", which, according to such licenses, usually does not include decompiling, reverse engineering, or other such uses), copying (usually only for the purposes of backup), and redistribution (usually only when acting as an authorized agent for the copyright owner). [4]
Open Source License - Definition
The OSI, Free Software Foundation (FSF)[5] and the Debian Linux community are the widespread de facto standard-setting body in the field of free and open source software licensing.
According to the FSF’s Free Software Definition (FSD), software “freedom” is the freedom to use, copy, study, modify and redistribute both modified and unmodified copies of software programs, all without having to pay for or otherwise obtain specific permission. To give practical effect to this freedom the licensor must allow users access to the software’s source code.[6]
Open Source Initiative (OSI)[7] defines the requisites of an Open Source Software License as
“Open source doesn't just mean access to the source code. The distribution terms of open-source software must comply with the following criteria:
1. Free Redistribution
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.
2. Source Code
The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.
3. Derived Works
The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.
4. Integrity of the Author's Source Code
The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.
5. No Discrimination against Persons or Groups
The license must not discriminate against any person or group of persons.
6. No Discrimination against Fields of Endeavor
The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.
7. Distribution of License
The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
8. License Must Not Be Specific to a Product
The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.
9. License Must Not Restrict Other Software
The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.
10. License Must Be Technology-Neutral
No provision of the license may be predicated on any individual technology or style of interface.”
The definition can thus be summed up as the following benefits to open source licensees to be free to:
- use the software for any purpose whatsoever
- make copies and distribute them without paying royalties to the licensor
- prepare derivative works and distribute them, also without payment of royalties
- access and use the source code
- use the open source software in combination with other software, including proprietary (that is, non-open source) software.[8]
Types of Open Source Licenses
There are about 66 types of Open source Licenses approved and recommended by Open source initiative.[9] The General Public License is the most common license. Their basic idea in imposing such a restriction, the so-called Copyleft[10], was to ensure software access to developers and to prevent software from being captured by proprietary software interests. The Linux operating system and programs associated with Linux are mostly licensed under GPL licenses.
Berkeley Software Distribution license does not require that the derivative works also be subject to the same terms as the initial General Public license. BSD licensees can improve the software and distribute their derived works without any obligation regarding source code disclosure and royalty payments. They can integrate the software provided by the licensor in any proprietary software of their own and may adopt proprietary licenses. BSD licenses can be found in commercial software’s such as Windows NT and the Apple’s Operating system, OS X.
GPL and BSD licenses have served as models for many other
Copyleft licenses
A copyleft, or reciprocal, license allows the user to modify and redistribute a software program at will. The licensee’s obligation under a copyleft license is to make relevant downstream technologies available to all comers (including the original licensor) under the same terms as provided by the original license. No one (including the original licensor and his or her licensees) obtains any special privilege regarding any next-generation technology, such as a right to preview any improvements or exclusive sublicensing rights to any improvements.[11]
These types of licenses apply restrictions on the distribution of derivative works. These types of licenses ensure that the code will always remain open/free. However, certain clauses like “the rights to the derivative works vest with the copyright holder” are binding on all the users of the software. The Free Software Foundation, the creator of the GNU Public License (GPL), released the first version of GPL in 1991. The goals of GPL v3 (new version) were to improve the technical quality of the license, strengthen users' rights, improve license compatibility, and strengthen patent defenses.[12]
For sake of free flowing open source fostering innovation, the innovator should take into account certain conditions while deciding on the use of copyleft license for the innovation, like the needs and constraints of prospective users, the tools that they are likely to use in conjunction with the technology. This can be easily displayed like in case, if tools are accountable under any proprietary property, which may conflict with the copyleft obligation to make downstream innovations freely available.
The Apache license is an example of GPL-Type license, for instance, specifically excludes the granting of the trademark to licensees. It requires an acknowledgment in end-user documentation and it prescribes the use of the name ‘Apache’ to promote derived works.[13]
Academic licenses
The other type of open source license is the academic or BSD-style license (
An academic license can achieve some of the goals of open source as effectively as can a copyleft license. The MIT license and the Common Public License (CPL) based on BSD Type licenses, have been written by professional lawyers and are more legally sound.
Special features of Open Source Licenses
Open source licenses set the relationship between the copyright holder and everyone who wants to take advantage of the software. They look very unfamiliar relatively to traditional copyright software licenses as well as to IP licenses in general. Commonly, a license restricts the use of the licensee to some field of use, to some geographic areas and to specific products. Moreover, it contains marketing arrangements that specify terms and conditions for licensees to pay royalties to the licensor. For instance, the Microsoft Office suite license indicates that you are not allowed to distribute the software anywhere for any purpose and gives details on the number of copies you are restricted to. An extra payment is required for additional copies.
An Open Source Software license is a copyright license; the licensor owns the copyright of the software; he grants a generous license but this must not be viewed as he surrenders his copyright and it must not be confused with public domain.
Open Source Software licenses offer flexibility in terms of
- making the source code available is an obligation for the licensor, not for the licensee - This enables the users to correct defects and bugs and customize programs or add features as they deem appropriate. However, they are not required, as licensees, to make available their own source code, that is, the code containing the modifications they introduced into the initial licensed program. Some licenses (e.g., the GPL) impose this requirement, but this is not a necessary condition for a license to be certified by OSI.
- completely free for users - As pointed out by Rosen (2004) “
- Zero/no royalty - The source code is available for free. Only payments to cover reproduction costs.
Open Source Licensing as a Strategy
Open source licensing is a kind of IP exploitation strategy which is principled around denying any and everybody the right to exclusively exploit a work. The creators of the work surrender all, or substantially all, of the IP rights to those entities which are capable of distributing and thereby exploiting that work.
A consumer of open source licensed software can freely distribute (in exchange for payment or not) copies of the work because of the “open distribution” principle. He can freely modify the work and distribute those derivative works, because of the “open modification” principle. The only substantial limitation upon his exercise of these rights that an open source license is likely to impose is that the copies of the work that she distributes, whether the original work or her own derivative work, be themselves licensed in a manner consistent with the original license. This principle is called “generational limitation.”
Open source licensing makes possible three substantial improvements over traditional proprietary commercial software licensing models – innovation, reliability & longevity.
Open source licensing has been most successful in the computer software field. Linux, Apache, and BIND are perhaps the best examples.[15] Reasons for such success being that many programmers are willing to contribute to open source projects for making it more useful for free. Such additions greatly contribute to improvement of work, ensuring innovation. Since many programmers are involved, we can interpret it as availability of many people who to debug a given program, even bypassing publisher’s financial or organizational limitations. Despite the possibility of disuse for some period, the software can still be revived, adapted, or rewritten by a subsequent user who finds a use for it—a use that may be completely different from the use originally intended, thus ensuring continuity.
Decision point
Why would anyone opt for open source licensing and forego the possibility of making money?
Licensors gain profits in other ways than direct financial gains. These include cost savings, in terms of zero investment on seeking patent protection in various jurisdictions,productivity gains, as more and more people will be able to access and try the usage,brand building, since more and more people will become aware of the product in the markets and, most importantly, an expanded user base. As the market expands, revenues from sales, one-off licenses, dual licensing, and complementary products and services may be enough to offset the opportunity cost of open source licensing. IBM has used this approach very successfully.[16]
Open source licensing can place an institution in a network of innovation with enormouscollaborative potential. The open source software can also be hugely successful and even might form a sort of standards and thus, can form a platform for various other proprietary technologies, thus giving more financial gains in terms of logical collaborations. Finally, open source licensing can encourage the development of alternatives to proprietary technologies.
For some kinds of technologies, the reproduction costs unlike for the software programs which is generally very close to zero, can be higher, and since there may be fewer distributors, licensees may be willing to pay more for “copies” of the technology. As a result, a licensor may be able to profit from the sale of non-software open source technologies.
Above all, Open source licenses gain existence from Copyright protection. A copyright grants the protection to the work for a minimum of 50 years all over the world, while a patent is valid for a maximum period of 20 years. Thus, it gives more life to the technology for its proprietary exploration.
An example of direct financial gains can be as seen through the model adopted by SugarCRM. The customer support module of the SugarCRM suite provides basic case management, bug tracking, and problem escalations. Sugar provides a free edition of its product, targeted toward deployments of 10 users or less; larger deployments will need to pay for either Professional Edition or Enterprise Edition.[17]
Open source: Industry perspective
All the software organizations/companies follow a definite strategy for distribution of their intellectual property. Open source software licensing helps in formulation of the game plan which leads to larger interests of business and innovation. Various companies have taken up the banter of open source and have benefited by the protection offered by it.
Some definite strategies coming adopted by well known software companies may be summed up as follows:
The Open Source Initiative accepted two of Microsoft's Shared Source licenses, the Microsoft Public License and the Microsoft Reciprocal License, thereby signaling that the licenses complied with the organization's criteria for meeting open source principles. While Microsoft is not about to release any significant revenue-generating technologies under either of these licenses, having OSI's blessing will break down some barriers that exist between the company and the open source community.[18]
SugarCRM provides a free edition of its customer software, targeted toward deployments of 10 users or less as free; larger deployments need to pay for either Professional Edition or Enterprise Edition, and typically IT support as well.
Apache Software Foundation's (ASF) unique approach to open source software development has resulted in several de facto standards for Web applications. ASF established the Apache Incubator project to support communities of developers involved in new projects and working with new technologies. The technologies at the core of many current Incubator projects promise to be useful to application development professionals implementing service-oriented architecture (SOA). Significant new projects will enable open source SOAs. Many of these build on existing ASF projects as well as open source software developed outside of ASF. ASF assures sufficient coordination among projects through the active participation by committers on multiple projects. Products based Apache's SOA technologies will reach the market through third parties.[19]
Collabnet has created tools that help companies develop software using lessons learned from open source projects.[21]
Commercial vendors sometimes release proprietary software into the marketplace to either create a friendly environment for their products or to threaten a competitor by creating a free alternative. IBM made its Eclipse development environment open source, which has created a thriving community.
GroundWork Open Source has moved from its initial professional-services-only business model to a subscription and services model. How? The founders have converted their IT operations experience into a suite of tools and best practices that harness a collection of open source network monitoring products. GroundWork broadens its offerings by expanding its monitoring capabilities to cover new devices and by producing reports that integrate and help make sense of mountains of measurements.[22]
Although fewer than half of the large enterprises in Europe and
Despite fears about lack of technical support or commercial viability, European firms have been actively adopting open source solutions over the past two years. Today, almost 40% of companies already use some type of open source software, and a further 8% have plans to pilot it during 2006. Utility and telecommunications firms, media companies, and public sector bodies lead enterprise adoption by a wide margin. Forty-five percent of the firms using open source have deployed it in mission-critical environments, although the vast majority (70%) uses it for non-key applications. Web server and server operating systems are the top two areas, with two-thirds of firms using alternatives like Apache, Tomcat, or Linux.[24]
Moreover, markets are getting integrated by piecing together the open source initiative in a new consortium, the Open Solution Alliance. This is formed to facilitate integration of software industry and adoption of open-source-based solutions. The OSA intends to provide guidance, recommend standards, and identify best practices so that integration and interoperability using open source is easy and cost-effective.[25]
Open source licensing in the field of Biotechnology
Obtaining a patent on a technology is a time and money extensive proposition. The field of biotechnology requires huge research investment and vast experimentation to help in culmination of the technology into valuable data. The basic unit for such study is the gene sequencing. Similar sequences may be shared and used to define the individual properties of such research. For Example, Data compilers for E.Coli, Drosophila, Plant Species, etc. reuse each other’s code.[26]
Conclusion
Any property is about wealth creation or accumulation. Intellectual property is yet another wealth, ready to be exploited. Open source software licensing is yet another instrument to the same means. The basic idea behind this innovation is that the software codes are actually like notes in the symphony. Like, by variegating the patterning of the same notes another symphony is created. Similar thing happens in the software domain.
By adopting the Open Source licensing the companies might be able to achieve two thronged objectives; firstly, promoting innovation and saving themselves from threat of patent prosecution of cross licensing fees and secondly saving on huge Patent filing costs.
Open Source Software licensing has established a new means of creating Intellectual Property - a resource for creating more business prospects, especially, covering those areas of technology where the quick turn around is must to create and generate more revenues.
[1] Open Source Licensing, Contract, and Copyright Law
[2] “What Is Open Source”by Dan Woods, dated 09/15/2005
http://www.onlamp.com/pub/a/onlamp/2005/09/15/what-is-opensource.html
[3] ibid.
[4] Understanding Open Source Software - by Red Hat's Mark Webbink, Esq.http://www.groklaw.net/article.php?story=20031231092027900
For a history of free and open source software, see also Levy S. 2001. Hackers: Heroes of the Computer Revolution. Penguin:
[8] “Open Source Licensing” by Janet Hope dated November 14th, 2007.
[9] http://www.opensource.org/licenses/alphabetical
[11] Boettiger S and D Burke. 2004. Open Source Patenting. Journal of International Biotechnology Law 1:221
[12] “What Application Development Pros Need To Know About GPL v3” by Michael Goulde with Mike Gilpin, Kahini Ranade, Katie Smillie dated August 6, 2007
[13] Copyright versus Patents: the
[14] Open Source Licensing by Janet Hope dated December 15,2007.
http://www.iphandbook.org/handbook/ch02/p06/
[15] Ibid.
[16] “Open Source Licensing” by Janet Hope dated November 14th, 2007.
[17] “SugarCRM Is A Strong Performer In Record-Centric Customer Service Management Software
The Forrester Wave™ Vendor Summary, Q2 2007” by Chip Gliedman with Ian Schuler, Sharyn C. Leaver, William Band, Liz Herbert, Mary Ann Rogan dated May 24, 2007
[18] “OSI License Approval Gives Microsoft More Open Source Credibility” by Michael Goulde with Mike Gilpin, David D'Silva dated November 13, 2007
[19] “Incubating Apache's Next Generation Platform:ASF Projects Create Open Source Software For SOA And Web Services” by Michael Goulde with Mike Gilpin, Megan Daniels, Katie Smillie dated March 22, 2007
[20] “MySQL's Transparency Sells Itself” by Michael Goulde, Jennifer Albornoz Mulligan with Laura Koetzle, Megan Daniels dated March 6, 2007
[21] http://www.onlamp.com/pub/a/onlamp/2005/09/15/what-is-opensource.html?page=2
[22] “GroundWork Assembles A Network Monitoring Framework With Open Source Pieces” by Michael Goulde, Jennifer Albornoz Mulligan with Laura Koetzle, Megan Daniels dated March 6, 2007
[23] “Open Source Becoming Mission-Critical In North America And
[24] “Is Open Source Gaining Adoption In Europe?” by Manuel Ángel Méndez with Reineke Reitsma, Ashara Giordanelli dated December 20, 2005
[25] “Open Solutions Alliance Pursues Application Integration” by Michael Goulde with Henry Peyret, Katie Smillie dated March 12, 2007
[26] http://www.slideshare.net/dullhunk/the-seven-deadly-sins-of-bioinformatics
