1. COPYRIGHT AND OPEN SOURCE LICENSING
COPYRIGHT AND OPEN SOURCE LICENSING
RITAMBHARA AGRAWAL
INTELLIGERE
OSI Days 2010
19-21 September, 2010
Chennai

2. Open Source www.intelligere.in
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.

3. Open Source www.intelligere.in
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

4. Definition of “Free” in FOSS
Definition of “Free” in FOSS
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 work
Freedom to study the work
Freedom to copy and share the work with others
Freedom to modify the work
Freedom 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.

5. Free Software Definition
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.

6. Copyright www.intelligere.in
Copyright 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.

7. Copyright www.intelligere.in
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.

8. Copyright in Software www.intelligere.in
All 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.

9. Rights granted by Copyright
Rights granted by Copyright
Copyright 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 public
To perform the work in public
To communicate the work to the public.
To make any translation of the work
To make any adaptation of the work

10. Copyright infringement
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/-

11. Copyright infringement in Software
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.

12. Copyleft www.intelligere.in
Copyleft 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.

13. Copyleft www.intelligere.in
Whereas, 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.

14. Few Questions www.intelligere.in
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?

15. Open Source Software is subject to Copyright
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.

16.
When does copyright infringement occurs in FOSS Fundamental violations in case of FOSS licenses include;
Distribution of copylefted FOSS code as part of non-free, closed-source, proprietary products
Placing more restriction on usage of the software as was there in the original license. One of such restriction can be that the “software can be used only for personal use and not for commercial use”.
Removal of copyright notice of the original author
Non-disclosure of the source code when the license requires the source code to be passed on to the downstream users
If the license doesn’t allow free distribution of the software
In case the license doesn’t permit modifications and making derivative works of the software

17.
Copyleft in FOSS
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 h
Strong Copyleft
All derivative work must be distributed under a copyleft license.
GPL
Weak Copyleft
Not all derivative work inherit the copyleft license. Usually used for creation of software libraries.
LGPL, Mozilla Public License
No-Copyleft
Does not require Licensee to distribute derivative work under the same license
Apache License, BSD License

18. MOZILLA PUBLIC LICENSE
FOSS Licenses
GPL v.3
No restrictions on internal use as long as license remains in force.
All original & modified portions must be released with the Source code to the downstream users.
If unmodified software is released, source code has to be made available to the downstream users.
Publish original copyright notice & warranty.
BSD
No restrictions on internal use.
No obligations to disclose source code for modifications.
No obligation to disclose source code.
Must retain the copyright notices.
LGPL
MOZILLA PUBLIC LICENSE
Source code of the modifications has to be released.
Copy of the license needs to be included along with the source code.
APACHE LICENSE
No obligation to disclose source code. Redistribution of original or modified software can be done as open source or proprietary.
Provide copy of license & retain copyright, patent & trademark attribution notices. h

19. MOZILLA PUBLIC LICENSE
Can licensed software (modified or unmodified) be distributed that has been combined or linked with code covered by another licensing model?
GPL v.3
Any software that contains GPL code or is derived from GPL code must be licensed as a whole under the GPL terms. In order to distribute software that has combined or linked GPL code with non-GPL code, the licenses must be compatible.
BSD
No specific restriction is imposed.
LGPL
Allows linking of LGPL code to non-LGPL code, without violating the license and without requiring source code disclosure of non-LGPL files.
MOZILLA PUBLIC LICENSE
Code under MPL may be combined with code not licensed under MPL. When such a larger work has been created, MPL source code and any modifications thereof must remain under the terms of MPL, however non-MPL code remains non-MPL.
APACHE LICENSE
No restrictions. h

20. Ask the violator to fix the problem.
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
Verify that your copyrighted code is being distributed or copied in violation of your license.
Ensure that exactly what code is copied in what product, and who holds the copyright to that code.
Who exactly is violating the license and of what does that violation consist of.
Understand the license applicable to the code and who holds the copyrights and what the license states.
Ask the violator to fix the problem.

21.
Few Things to keep in mind before taking any action against the violator
Is the copyright notice of the copyright holder included in the violated software product?
Is the source code completely missing or a part of the source code is missing?
Is there complete information about the origin of the source code and the owner of the source code? This could also happen in case contact details or URL is incorrectly mentioned.
Is there a copyright of the license included in the distribution of the software?
Is some of the source code available? If yes, what part of the source code is missing?

22. Copyright Assignment in FOSS
Copyright Assignment in FOSS
Centralizing copyrights via assignment has its own advantages. The most important factor for assignment of copyright to the project is license enforcement. If copyright ownership is scattered throughout the chain, license enforcement would be a very tedious task.
Some FOSS projects require the developer to transfer the copyright ownership to the “project”. This can be done either by assigning to the founder of the project or to some legal entity representing the project, before new code is entered into distribution.
Another issue which can be resolved via unifying copyrights is to avoid later competing copyright claims, like claims made by employers or developers of proprietary software.

23.
Case Study

24. Jacobsen v. Katzer Issue Points to consider Judgment
Jacobsen v. Katzer
Jacobsen made a software and released the same under FOSS license. Katzer incorporated the code written by Jacobsen into his software, and deleted the copyright notices included in that software.
Issue
Whether a developer of software that made its code available for free collect damages for copyright infringement?
Points to consider
The code in question was sufficiently original to be entitled to copyright protection
There was evidence attributing monetary value for the actual work performed by the contributors to the project, therefore, monetary damages can be awarded in this case, despite being freely distributed software.
The removal of the copyright and authorship data contained in the pirated code was a violation of the DMCA, thus provided a basis for suit for that action in violation of the license.
The said judgment has made it clear that the FOSS licenses are enforceable and monetary damages can be collected for infringement and copyright violation of the license in question
Judgment

25. Busy Box Case Issue Judgment www.intelligere.in
In this case there was a software in issue in the product known as “Busy Box”. Busy Box software was under FOSS and the source code was released and was available at no cost and was subject to GPL. In the said case, the author of Busy Box software asserted that Westinghouse and thirteen other commercial electronics distributors) infringed the copyrights in the software when they distributed high-definition televisions running with the copyrighted software, as Westinghouse imposed more restrictive conditions as those specified in the GPL and thereby limited use of the software to “personal, non-commercial purposes only”.
Issue
The court concluded that the infringement by Westinghouse was wilful and the Court entered a permanent injunction prohibiting distribution of HDTV products with the Busy Box software and also ordered for seizure of all infringing HDTVs. The Court further awarded statutory damages of $90,000.
This case is of significant importance as it proves that for violation of license of FOSS, monetary damages are payable for a software that is otherwise available at no cost and demonstrates the consequences of violation of FOSS licenses
Judgment

26. Linksys Matter Issue Conclusion www.intelligere.in
In the said case Cisco acquired Linksys and paid a handsome amount for acquisition of its proprietary software. After the acquisition, Free Software Foundation (FSF) noticed that linksys toolkit contained FSF copyrighted code licensed under GPL. FSF contacted Cisco but Cisco contended that it would be too expensive to re-engineer the product and replace all the open source code.
Issue
Cisco, therefore, had to release the toolkit source code under GPL. Due to this what happened was that the software which Cisco acquired as a proprietary software became freely available at no cost. In the said case, Cisco acquired the said software from Linksys, Linksys from Broadcom, Broadcom had given contract to a overseas contractor, which provided the FSF software to Broadcom without acknowledgment. In the said case, Cisco had to face the consequences and release the acquired proprietary software at no charges.
As FOSS is a chained process, getting an IP audit done is the best practice in determining any issues relating to IP so that clean IP can be maintained throughout the chain. This will also help in reducing costs to the company which has acquired a software thinking it to be proprietary which actually was a product under FOSS license.
Conclusion

27. Netfilte v. Sitecom Issue Conclusion
Netfilte v. Sitecom
Sitecom developed and distributed a firmware for a specific kind of wireless network broadband router through its website. This firmware contained the Linux kernel including the software ‘netfilter/iptables’9 which is an open source project distributed under the GPL. Sitecom did not release the firmware under the GPL and did not mention that the firmware contained the GPL licensed software. Also, Sitecom neither mentioned the reference of the GPL nor to the source code of `netfilter/iptables'.
Issue
The Court opined that the distribution of the firmware by Sitecom without complying the conditions of the GPL constitutes an infringement of copyright
Conclusion

28.
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.

29. Compliance of violations, if required License Compliance
Compliance Tools can be introduced in the system
Developer training and project planning
The team can also verify that no unapproved modifications were made to external software products
Compliance of violations, if required
Post development license analysis and correction
Contributor Agreements can be put in place so that IP cleanliness can be maintained
License Compliance
Best Practices

30.
Thank You !

31.
Q & A

32.
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