Open Source Code and Software Issues in IPR

UniversiyOfPetroleumAndEnergyStudies,Dehradun
Open Source Code
and Software Issues
in IPR
Special Focusonthe issuesrelated withOpen Sourcecodeandthe Open
SourceSoftwares
Ria Tandon
3/30/2015

Open Source Code and Software Issues in IPR 2015
©RiaTandon,Universityof Petroleum AndEnergySudies,Dehradun,2015.
UNIVERSITY OF PETROLEUM & ENERGY STUDIES
COLLEGE OF LEGAL STUDIES
BA.,LLB.(HONS). ENERGY LAWS
SEMESTER
ACADEMIC YEAR: 2015-16
IPR
PROJECT SUBMISSION: Open Source Code and Software Issues in IPR
Under the Supervision of: Miss. Anuradha Nayak
Name:
1.Ria Tandon
500017689
R-450211080

INDEX
Serial Number Contents
1. CHAPTER 1- INTRODUCTION
i. Open Source Code
ii. Licensing for Open Source
iii. Digititalised era of Open Source
2. CHAPTER 2- OPEN SOURCE CHARACTERISTICS
i. Copyright with respect to copyleft movement
ii. Open Source as a Concept
iii. Open Source vs. Proprietary
iv. Re-distribution of the Derivative Work
3. CHAPTER 3 – INTELLECTUAL PROPERTY RIGHTS
RELATED TO SOURCE CODE AND SOFTWARE BASED
ON IT
i. Copyright
ii. Patent Protection
iii. Trademarks
iv. Moral Rights
4. .
CHAPTER 4- License Issue
i. General Public License
ii. Types of License as Contract
iii. Cases
5. CHAPTER 5- OWNERSHIP AND INTERNATIONAL ISSUES
i. Ownership Issues
ii. International Issues
6.
CONCLUSION

ABSTRACT
Open Source Code is a software –development model wherein this model provides for the free
access to any person in the world to access the coding behind it and develop something new ont
his idea . The best way is to understand by taking the example of Wikipedia under which there is
a possibility for a person to edit it according to their own wishes. So there are many issues with
respect to the open sources which is dealt in this project by the author in detail.
The author argues in this project by narrowing the focus on the need for the license which is the
General Public license as that with respect to the open source software. The author emphasizes
onto the difference which is there with respect to the proprietary aspect of the right and that of
the open source code. There are different types of licenses which are involved with respect to the
open source code and the others. There are different analysis which is given with respect the
growing market of the open source which is taking place in the developeing countries like China,
India and Brazil and how the economic development is takin place in these countries. There is a
special focus which has been paid to that of the various type of various heads of that of the
intellectual property rights and its connection with respect to open source code.
The scheme of research would be that of Empirical research method. Basing on the theoretical
analysis of the published peer reviewed and the journal article
KEYWORDS: Open Source Code, Intellectual Property Rights,General Public License and
Wikipedia

SYNOPSIS
CHAPTERISATION
CHAPTER 1- INTRODUCTION
i. Open Source Code
ii. Licensing for Open Source
CHAPTER 2- OPEN SOURCE CHARACTERISTICS
v. Copyright with respect to copyleft movement
vi. Open Source as a Concept
vii. Open Source vs. Proprietary
viii. Re-distribution of the Derivative Work
CHAPTER 3 – INTELLECTUAL PROPERTY RIGHTS RELATED TO SOURCE CODE
AND SOFTWARE BASED ON IT
v. Copyright
vi. Patent Protection
vii. Trademarks
viii. Moral Rights
i. General Public License
ii. Types of License as Contract
iii. Cases
CHAPTER 5- OWNERSHIP AND INTERNATIONAL ISSUES
i. Ownership Issues
ii. International Issues

CHAPTER 6 – SCENARIO IN DIFFERENT COUNTRIES
i. Brazil
ii. China
iii. India
CONCLUSION

CHAPTER 1- INTRODUCTION
i. Open Source Code
Open Source Code is a software –development model1 wherein this model provides for the free
a possibility for a person to edit it according to their own wishes. This provides for an access
wherein there is a free license and access to the blue print as well as the subsequent
improvements2 to it. The term open source earlier was used with some different name. There was
hold of the open source with the increase in the use of it .
Though this refers to the use by the general public or available to it with respect to its original
design. The main aspect of thid code is for the programmers to improve upon it and this source
can be used so that these changes can be made available to the community at large. Though this
is not the case , this code is available to the public under some kind of license. The uses for this
code is that it is used as the model for things like open-source for the appropriate technologies3
as well as the technologies like photovolt as well as the open source drug discovery which is
present.
ii. Licencing for Open Source
Under the concept of the other products which has its basis on that of intellectual property with
respect to the software is generally used with respect to its use and not for being sold.
Eventhough it is seen with the opern source it can be used freely but when it comes to its
distribution then it cannot be done without a licesnsing agreement. There are many types of
licenses which are there with respect to the open source. There is the concept of General Public
License , under which it is necessary that the soucrce code should be made available. This
1 Neil Gandal, A brief look of the economics of open source software, also available at
http://www.voxeu.org/article/open-source-software-issues-and-trends.
2 Gerber,A; Molefo; VanderMerwe, Documenting open –source migration process for re-use,also available at
http://dl.acm.org/citation.cfm?id=1899503.1899512.
3 Joshua M Pearce, The Case for Open Source Appropriate Technology,also available at
https://www.academia.edu/1517361/The_Case_for_Open_Source_Appropriate_Technology.

license is restrictive in its nature hence there is a problem with respect to the developing of a
commercial product.
The projects which are running onto the commercial operating system that are bassically
tageted towards the developers are lesser restrictive4 in nature while those which have the target
as the users use more of a end user is considered to be more of restrictive in its nature.
With respect to the role of open source in that of the digital era . It is seen that this aspect has its
bounds beyond the aspects of software. There is a concept of creative commons which to rescue
with respect to help the creators of that of the content to be granted various levels or the stages of
copyright permisssion with respect to it. The degree of the copyright which has been granted
differs from either that of the all rights which are reserved or o that of the some of the reserved
rights and wherein there are no rights which are preserved. Wikipedia started with the concept of
that of the GPL license for that of the tets and then it adopted the concept of that of th creative
commons.
Creative commons is a concept where there is a non profit organization which has its
headquarters in California , United States . The main work of the organisation is to provide for
the creative work to be provided so that it can be provided legally5 to the people on the internet .
This organization provides for the license for the copyright which is known as the creative
commons license which is provided for the public at free of charge. There is such negotiation
wherein there is a negotiation between the copyright owner who is the licensor and that to
between the licensee , wherein there is no commercial type of negotiation being involved with
respect to it. Wikipedia also uses this kind of license . The main aim of this organisation is on the
lines of that of the copyleft movement6, wherein it is seen that the public domain will move from
all the rights reserved to that to the some rights reserved.
4 Neil Ganal, A brief look of the economics of open source software, also available at
http://www.voxeu.org/article/open-source-software-issues-and-trends.
5 https://wiki.creativecommons.org/FAQ.
6 http://playingwithsid.blogspot.in/2008/12/introduction-to-copyleft-movement.html.

The open source movement was started during the time of that of the institutes as like that of
Massachusetts Institute of Technology and the other being the University of California, Berkely.
Then there was introduction of general public license as already been explained then came the
Mozilla Public License. So it does not mean that a person can have access to the open source but
it dependends mainly upon the the body which sets up the standard with respect to the project
which is being superheaded7.

CHAPTER 2- OPEN SOURCE CHARACTERISTICS
i. Copyright with respect to copyleft movement
The main idea with respect to that of the open source software movement was that there should
be enabling of that of the free use it by everyone , be it developers and the other being the users.
The four freedom aspect which has been provided for are the use of the software without any
stopping or that of the restriction, the software being rewritten , modification of that of the
software by rewriting it and the liberty to share the software and the gloal use of the product with
respect to the granting of the alterations rights as well as the right with respect to the permiting
the distribution8 of it.
Public domain is a way out wherein there is a possibility to have the freedom with respect to the
access. Internet is that public domain where it is possible to have the easy access. The mode
which provided for freedom had some problems when it came to the point with respect to the
modification by the users and then the asserting of the rights basically the propriety rights.There
was a distinction which developed with resppect to the rights of that of the users and the
developers.The example with respect to this would be the x windows license9 wherein both the
developers as well as the users had the right with respect to the freedom use.
With the introduction of that of the GNU project there was an introduction of the idea of
Copyleft which means that the agreement allows the software to be used as well as modification
and the redistribution along with a notice10 to it. The General Public License is granted or is
being carried on by GNU EMACUS and the other types of free software foundation softwares
which are there.
8 Stallman condensed,available at http.//www.gnu.org/events/rms-nyu-2001-summary.txt.Also see
http://www.gnu.org/events/rms-nyu-2001-transcrpt.txt.
9 Ibid.
10 See The Concise Oxford Dictionary of current English (Oxford University Press, Oxford).

This aspect of lisensing system as provided for under the copylet system allows for the software
to be kept free , hence here copyleft uses the copyright laws with respect to keeping the software
to be free insteading of going for privatization so here copyright does the opposite11 of it as to
what generally it does. Under the concept of that of copylefting it is seen that the rights of that
of the author is recognized but some of the rights which are generally being given under the
copyright is given away12. Under this kind of licenseing it is allowed for the user when making
changes to the orgninal work not to atttribute to the original author. Hence this works allows for
the free availability of the work as well as tha to the derivatives13 to use with respect to the user
public which is there . The source code of that of the software which is there provides for the
users the right to use it which is based on the four freedoms , provided by the cocept of that of
copyleft.
ii. Open Source as a Concept
There are some criterias which have been set up with respect to the right of that of the
distribution so that it qualifies as that to be an open source.
 Free Redistribution
According to this the license cannot restrict any party with respect as to the selling or that of the
giving of the software as that to being a component of that of the aggregate software with respect
to the distribution which contained the programme from that of the different sources. This
license would not require as that of any of the royalty or the source.
 The Source Code
11 See , The GNU Project, also available at http://www.fsf.org/gnu/the-gnu-project.html.
12 See Michael Stutz, Applying Copyleft to non-software information, also available at
http://www,gnu.org/philosophy/nonsoftware-copyleft.html.
13 See Mathias Strasser, A new paradigm in intellectual property law?: The case against the open source,Stanford
Tchnology Law Review, 4,2001.

The programme under should have the inclusion of the source code and there should be allowing
of that of the distribution of that of the source code as well as that of the compiled form which is
there. Wherein it is seen that the product has not been distributed as to along with that of the
source code then there must be the means for the publiction as that of the obtaining of the source
code which is not more than that of the reasonable cost of reproduction.The downloading is to be
there via the internet which incurs no charge as such.
 The Author’s Source Code
There can be a restriction with respect to the distribution of the source code if the license allow
for that of the distribution of the form which is modified as being the patch files with the aim of
midifying the program as that during the build time . The license should allow for the
distribution of that of the software which is made by the way of the modified way which is there
.
 License Distribution
The rights which are there along with the programme should be given or provided to all of the
users for whom the programme has been redistributed wherein there is no need with respect to
execution of that of the additional license which is there for the parties.
 Technology Neutral License
There is no availability with respect to that of the provision of that of the license prediction for
the individual technology or that of the style of that of the interface.
License should not affect other Software
Under this head it is stated that during the distribution of the software which is distributed along
with that of the licensed one so there should not be any restriction with respect to it.
 Derived Work

There should be a provison with respect to the license to be allowed with respect to the
modification as well as for the derived work , hence distribution should be allowed as of the
same terms which are there with respect to the original software.
 Non discrimination Approach Towards the Person or the Groups
There should not be any discrimination as that to towards the person or that to towards any of the
group.
 License should not be product Centric
Under this the rights which are being provided with respect to the program should not show or
have dependence towards the software being an important party14 of that of the software
distribution. If it seen that the programme which was extracted from that of the distribution and
is provinded under the guidelines of that of the program’s license , so under this all parties who
receive the redistributed programme will have same rights as to which is given under the aspect
of the original software.
iii. Open Source vs. Proprietary
With respect to the proprietary software the main aim is to have the profit factor as there is a lot
of research as well as efforts are invested into it . The proprietary is guarded under the strict as
well as different conditions which are persisting as to throughout the world. Proprietary software
does not allow for the modification, redistribution, copying as well as redistribution without the
provider knowing about it.
So under this concept only the proprietary owner has been given the right with respect to the
modification as well as the developmental works on that over the software as it is done in the
case of that of the MICROSOFT. Hence all the companies which develop the software which is a
14 Open Source, Also available at http://www.opensource.org/osd.html.

proprietary software , in that case the company’s have the right with respect to the source which
here becomes the property of that of the company15.
Under the PSs the customer who purchases the software has to pay for the service support as
well as for that of the updates which are there. Under this only those people work who have a
money related interest in it. While as that under the open source software the scenario is different
it is developed by signle person and not a group or that from different people in the different
areas and the parts of the world. Companies also at times emply people from the different parts
to work and then they release it in the market without any intention of gaining any money out of
it.
The open source software has gained its share in the market. During the year of that of the 1950s
and the 60s there was a free distribution of the softwares. The idea of that of the proprietary was
introduced by the Richard M Stallman, wherein there was also the introduction of the General
Public license. With the coming of the internet there was an introduction of that of the
coordination between the developers who are there all around the world. The suitable example
with respect to this will be that of the Linux whose new version being Linux Torvald.Then there
is an introduction of that of the Red Hat Software16 , which has become a fast growing as well as
profitable company, which is involved in the selling of the boxed version of the Linux , wherein
they have a customer base of around 7.5 million.
Under the concept of the OSS, the software is considered to be free in market as well as the
source code is also distributed with it in the market. The holder has also the right to make
modification to it as well as distribute . The modification which is made to the OSS shall fall
under the ambit of OSS and will have nothing to do with the proprietary.
The main argument which is there in favor of that of the OSS is basically the lesser cost factor
which is present. There is no need for a license when it comes to the OSS as well as the there is a
need for a minimal requirement with respect to the investment factor which is there . The aspect
of that of the profit making is absent in the case of that of the OSS that is why there is a closure
15 Lowry Paul Benjamin, Stephens Jackson,Making money with open source software business initiatives’ also
available at papers.ssrn.com/so13/papers.cfm?abstract_id=669241-24k.
16 Available at http://www.redhat.com/products/linux.html.

of that of the many OSS in the United Sates17. Thought it is stated that the entry level is lowwith
respect to the OSS. When it comes to the OSS then it is seen that under it there is a provision for
the experimentation unlike that of the PSS wherein there is restriction to that of the
experimentation in this .
The Software in the case of that of the Properietary is gaining its ground in India. While when it
comes to that of the OSS then it is seen that there is little development as it is seen that the there
is very limited time frame as well as there is concentration onto the signle person . There is more
dependence on the volunteers with respect to this kind of work.
iv. Re-distribution of the Dervative Work
Derivative work basically means the wrok which is already exiisting like for say there is any
sound recording, fictionalization and the musical arrangement. The work which includes the
editorial revision, modification and others as wel as the original work which is there for
authorship is regarded to be derivative work.
When it comes to the products, which is the work being derived from that of the software license
which is found to be under that of opn source. Under the concept of GPL it is seen that the very
aspect of the open source goes against it. There is the snatching of that of the copyright aspect of
that of the proprietary software dealer who developes the software which is new and is derived
from that of the open source product. There is taking away of the right of copyright of that of the
commercial software dealer or that the programmer which is there , as the developer developes
by his efforts a software product which has been derieved as that from the open source code, is
retained with the developer. With respect to the distribution of that of the product (which is a
derived work from that of the open source software, is given the right to be distributed only by
the way of GPL or the other open source licenses) the developer has to make sure with respect to
the source code be available to he other people for free of cost. The prson who makes the source
code available for free gives up his right of that of having any proprietary right over it. There is
also no compensation provided with respect to this aspect and there is exploitation of the labour .
17 The Linux uprising, Business Week Online, March, 26 th, 2015.

There is an element of destabilization which takes place for the commercial world wherein there
is free use of the product wherein the users do not pay for the product18.
18 See Microsoft Press Pass- The Commercial Software Model, also available at http://www.
Microsoft.com/presspass/exec/craig/05-03sharehouse.asp.

CHAPTER 3 – INTELLECTUAL PROPERTY RIGHTS RELATED TO SOURCE CODE
AND SOFTWARE BASED ON IT
i. Copyright
Under the copyright aspect there is distaste towards the propriterary model of the protection
under the copyright law. Those who are the believers in that of the OSS are of the view that there
is a restriction when it comes to the aspect of that of the benefit part with respetc to that of the
proprietary aspect to it. Hence so as to solve this problem there was the view from the proponent
of the open source with respect to the copy right protection of that of the softwares. The viwers
of that of the OSS regard the interpretation of the legal foundation on which the proprietary
aspect is based upon. The modus operandi with respect to that of the open source is that there is
copyright software , modification of it it as well as the free use of it at large.
The major problem which is seen with respect to open source is with respect the allegation of
that of the proprietary arena has its infiltaration in that of the open source code in propriterary as
well as vice versa. In the case of SCO VS. IBM litigation19 , wherein SCO had claimed IBM had
ilegally had gone for incorporation of that of the SCO’s propriterary UNIX code into that of the
open source code Linux operating system , hence every user as well as the copyright infringer
was supposed pay the licensing free for it. The court rules that the lines of codes in that of the
Linux kennel was infringed. In the case of that of Microsoft , wherein it was forced on with
respect to the contribute code ( Hyper-V drivers) with espect to Linux so as to avaoid any of the
GPL violation which exists, when it was found out that Microsoft had the incorporation of that of
the GPL licensed components into that of the mentioned Hyper –Vdrivers.
19 McGowan D, Intellectual Property challenges in the next century:Legal implications of open source software,
University of Illinois Law Review, 2001(1)(2001)241.

ii. Patent Protection
Open source is seen by its proponents with resect to the patent jurisprudence with respect to the
software context and regard it to be some thing which is underserving in nature and they
disregard the elemet of that of the incentive to be wrong in their view as such. The arguments wit
respect to the patent is both of being procedural as well as being theoretical.There is a challenge
with respect to both the non obviousness factor20 for that of the building block programme which
are there as well as the non disclosure of that of the source code21 which takes place. The
theortical aspect or the argument is with respect to that there is a creation of that of the
anticommons ideas as against that of the large building blocks22 which are there. There is a threat
when it comes to software patents to that of the open source code . If it is seen that there is an
infringement of that of the proprietary programme then there is a stop with respect to the OSS
model.
Though it has been seen that big companies as like that of IBM, Sony , Samsung and the other
like Nokia had keen interest with respect to the open source model but it was found out that these
corporate houses wanted to maintain the traditional approach with respect to acquire the patent
rights which are available to them. It is seen that there has been a great impact with respect to the
OSS by the patent threat which it is supseptible to as well being removed from that of the public
arena. So as to combat the problems like these many of the corporate houses have been
interested to extent the open source community some relief so that there is achieving of the factor
of versatility with respect to that of the business model which is there.
iii. Trademarks
The term that is open source was earlier not included under the ambit of that of the trademark.
However it is seen that the open source developers haved showed a lot of sophistication when it
20 Hass D, A gentlemen’s agreement assessingtheGNU GPL and its adaption to Linux, Chicago-KentJournal of
Intellectual Property, 6(2)(2007)213.
21 Evans D , Software Patents and open source: The battle over intellectual property rights,Virginia Journal of Law
and Technology, 9(3)(2004)10.
22 Rowe K, Why oay for what’s free?: Minimizingthe patent threat to free and open sourcesoftware, John Marshall
Review of Intellectual Property Law, 7(2)(2008)595.

comes to that of the trademark law, there are ideas like that of the certification marks wherein it
is seen that the particular software which is there is in compliance to that of the open source
scheme which exists which is regarded as the OSI certified when there is a software complying
along the lines of that of being Open source. Though the terms Copyleft is not offficcially
recognized but when it comest the distinctive aspec it acquires the distinctive trade use .
These certification marks which has been as discussed above are basically providing for the
recognition to that of the open source approach as when compared to the OSS PRODUCT.
Hence there is avoidance with respec to many of the hassle which may arise undet the trademark
law like that of the polcing of the mark and the other being that for the allowing of that of the
flexibility with regards to the usage as well as the shifting of the onus of the responsibility that
shall be onto to the developers.
iv. Moral Rights
With regards to the moral it is of utmost importance with respect to the open source software.
The concept of that of the open source has its basis mainly onto the reputation reward rather than
that of the monetary rewards which is there in the case of the proprietary rights. These rights
have its control jurisdictionally or that with respect to the limits which are there for the rights. It
is seen in some countries that there is a provision with respect to the denying of the moral rights
while as that the waiving away of the moral rigts which is there for the software authors. When
we talk in context of India then we see that under section 57 of that of the Indian Copyright Act
there is the moral right protected with respect to the back up copy purposes and the others.
Legal system which is there in place with respect to the recognition of that of the moral rights
provides for an alternative way for that of the protection when it comes to OSS. If there is a
violation with respect to the open source license terms then it is regarded to be equal to that of
the violation of the developer’s moral right which is there in place. Section 14 of the Copyright
Act provides for the restriction with respect to the modifiers action and in cases of that of the
exceptional circumstances there is a possibility by that of law wherein the author can protect
his/her work from being distorted..

The individuals and the small developers are at a disadvantage since the open source softwares
are being afffected by th epatent threat and are aslo being removed from the public domain on
the internet since many of the large corporate stakeholders which are there are forming a fence
as that to round the open source territory which is present there.

iv. General Public License
This license is widely used all around the world and the terms with respect to this license is
with respect to the retransferring of the software . The merits of this license is with respect to
that of the viral as well as the pass through license terms. This license is used because it is
associated with that to Linux . This license is considered to be most problematic as well it is
not very clearly drafted. The interpretation which has been set up with respect to this license
is to that by the Free Software Foundation, which states the commitment of that of the idea of
having a free software.
The provision of that of the GPL is in direct contact with respect to the commercial as well as
the political context by syncing it with Copyright , which is basically firstly the copyright,
secondly the distribution terms which are there and the distribution of any of the programme
which is there. It is bconsidered to be a very powerful license since there is mixing of the
GPL code along with that of the new code with respect to the derivative work wherein there
is an obligation for providing for the source code for free. It is the responsibility of the
developer who takes up the source code as under this license are supposed to provide for the
source code of that of the entire prouct which is there.
v. Types of License as Contract
It is noted that the FSOS includes some of the standard forms with respect to that of the
contractual agreement which persists. This has been stated in various places as well as the
effect of that of the agreement and the provision wherein the conduct is known for that of
the acceptance of that of the license. The language which suggests such are as follows:
2.1 Free Academic License:
Under this there is a distribution of that of the copies of the original work or that which is
derivative in nature. There should be reasonability23 with respect to the efforts as that to
23 See Open Software License, ver. 2.1 (2004).

under the circumstances under which there is a need to have the express assent of the
receipt with respect to the terms of the license. Nothing in the license or wherein there is
a written agreement as between the Licensor and the Lisence , there is a grant of the
permission as to the creation of the derivative work based which is based on that of the
original work as well as to exercise the rights which are given that to under section 1.
Hence the righst which are granted under section 1 shows the acceptance of the license
with respect to the terms and the conditions.
2.2 Apple Public Source License
Under this License , it has been stated that the person should be careful before he/she
downloads . If the person downloads or is using the sofware then the person agrees to that
of the terms of the license which is present there. If the person does not agree to the terms
which is given with respect to the license then it should not be downloaded.
2.3 Common Public License
The programme which is accompanying is provided for under the terms of the common
public license. With respect to that of any of the use, distribution or that of the
reproduction of that of the programme has the acceptance as well as the agreement from
the side of that of the receipient.
2.4 Eclipse Public License
The programme which is accompanying in here is provided that with respect to the or
that of under the terms of that of the eclipse public license. It states that if there is any
distribution or that of the reproduction of that of the programme has the inclusion of that
of the receipient’s acceptance of that of the agreement.
vi. Cases
3.1 With respect to the case of Specht v. Netscape Communications Corp24. it was held
that the terms of the license which was relating to the free Netscape Software had not
become the party of that of a contract. While the could in this case did not state that the
idea with respect to the online assent is not regarded to be enforceable in nature, the
24 Specht v. Netscape Communications Corp ., 306 F.3d 17 (2d Cir.2002) .

manner of the presentation din’t let the transferee understand the reason with respect to
the downloading of that of the software would be resorted as the contract .
3.2 In the case Register.com v. Verio25, Inc. the second circuit court stated that the
whether the company which had downloaded from that of the site name Register.com the
factual data with respect to the domain name registration was found to be bounded by the
terms of that of the contract as it restricted the use of the information right. The License
terms were found to be enforceable even though it was seen that there was no express
assent to that of the terms. Here, it was stated that with respect to the downloading of the
data was considered to be an assent to the terms. Also the site was used by the company
frequently so the license was being used with respect to the privilege .
25 Register.com v. Verio, Inc., 356 F.3d 393 (2
nd
Cir. 2004 ).

CHAPTER 5- OWNERSHIP AND INTERNATIONAL ISSUES
iii. Ownership Issues
With respect to the free and the open source tries to control the aspect of the copyrights as well
as the patents which are in association of that of the software. The main question which arises is
with respect the question is as to who is the real owner of that of the software since there is a
contribution from the side of a large number of the participants. According to the law of that of
the copyright the right vests into the person who is the owner of that of the copyright , whether it
is the person who is the orginal owner or the person wh receive the transfer of it. In case of that
of the absence of that of the employee with respect to the work for hire context , the law
considers that the person who creates the material is the real owner with respect to it.
The point being that under the copyright ownership aspect is vested with that of the creative
author but there are problems even with respect to the transaction between the two parties and
the problem increases when it is found out that for some of the FSOS products the contributors to
this is quite large in numb
“Given the growing expanse of users working collaboratively, today’s Linux is less a seamless
piece of coding than a tapestry of hundreds of hackers’ contributions.26” Which was stated by
one person27 or the author . These hackers have their copyright for that of their own work, even if
it is seen that there is no need for them to assert the right as to against any person. It is seen that
after the modification has been made then there is no waving28 of the right by anyone with
respect to that of the copyright.
26 Glyn Moody, The Greatest OS That (N)ever Was, www.wired.com/wired/5.08/linux_pr.html.
27 This assumes, of course, that they have not separately transferred the copyright back up to a central group
monitoring or controlling the “official” version of the software.
28 See, e.g., Storm Impact, Inc. v. Software of the Month Club, 13 F.Supp.2d 782 (ND Ill. 1998); Scanlon v. Kessler,
11 F.Supp.2d 444 (S.D.N.Y. 1998) (Photographer had voluntarily provided the corporation with thousands of
photographs for website; withdrawal of consent and subsequent use was infringing).

iv. International Issues
As the free software distribution model grows throughout the world legal notions such as
“jurisdiction” and “choice of law” will highlight the legal nature of the GPL and its international
enforceability. Some of these issues may turn on whether we see the GPL as a license or a
contract? To date in this article, these words have been used almost interchangeably. The
distinction is important. Contract law is subject to the vagaries of various national approaches.
For instance, some legal systems require a contract to be in local language for enforceability. A
copyright license enables products to come under intellectual property laws that have been
harmonised by international treaties such as the Berne Convention for the Protection of Literary
and Artistic Works, WIPO Copyright Treaty (1996) and TRIPS. Along with the principle of
national treatment this means that copyright law is (arguably) more widespread and uniform than
contract.
Chief counsel for the Free Software Foundation, Eben Moglen, suggests the GPL is a copyright
license not a contract. “Licenses29 are not contracts: the work’s user is obliged to remain within
the bounds of the license not because she voluntarily promised, but because she doesn’t have any
right to act at all except as the license permits30.” In the only case to consider enforcement of the
GPL requirement to publish source code, he made the following claim:
The GPL is a very simple form of copyright license, as compared to other current standards in
the software industry, because it involves no contractual obligations. Most software licenses
begin with the exclusive rights conveyed to authors under copyright law, and then allow others
access to the copyrighted work only under additional contractual conditions. The GPL, on the
other hand, actually subtracts from the author’s usual exclusive rights under copyright law,
29 It could be argued that if the GPL is a mere licence it can be revoked at will leaving developers on a free software
platform at the mercy of the licensor: J Malcolm, “Problems in Open Source Licensing” (2003)
<http://www.ilaw.com.au/public/licencearticle.html>
30 Eben Moglen, “Free Software Matters: Enforcing the GPL, I”, 12 August 2001,
[http://emoglen.law.columbia.edu/publications/lu-12.html] 25 January 2002. See also: B Fitzgerald, “Digital
Property: The Ultimate Boundary?” (2001) 7 Roger Williams University Law Review 237; B Fitzgerald,
“Commodifying and Transacting Informational Products Through Contractual Licences: The Challenge for
Informational Constitutionalism” in CEF Rickett and GW Austin (eds), Intellectual Property and the Common Law
World, Oxford, Hart Pub, 2000, 35.

through the granting of unilateral permissions. When a work of copyrighted software is released
under the GPL, all persons everywhere observing its terms are unilaterally permitted all rights to
use, copy, and modify the software. Because these permissions are unilaterally given, users who
wish only to use the software themselves, making copies for their own use, or who wish only to
make derivative works for their own use, do not have to “accept” the license, because they have
no reciprocal obligations under it31.
An analogy can be made with land to demonstrate Moglen’s view. I can give you a license to
walk on my land. This requires no counter obligation from you. It remains a unilateral
permission not a contract. But such a view ignores the obligation to publish source code on a
developer wishing to distribute a derivative work based on a GPL product. This obligation makes
the license more like a contract.
31 Progress Software Corp. v. MySQL AB 2002 U.S. Dist. LEXIS 5757. The “Declaration of Eben Moglen in
support of defendant’s motion for a preliminary injunction on its counterclaims” made on February 22 2002 is found
at: [http://www.fsf.org/press/mysql-affidavit.html].

CHAPTER 6 – SCENARIO IN DIFFERENT COUNTRIES
iv. Brazil
It is seen that the Software industry of this country is around same as that of India . After
the liberalization which took place in the year of that of 1990’s the market32 became
competitive internationally. It is now seen that BRAZIL is the seventh largest market of
that of software in the world. In the year of that of 2002, the software sales were around
the US4 5 billion. Then in the year of 2003 it increased by 7.7 US $. Brazil has an import
of that around 1.5 to 2 billion dollar and the 98 % of that of the sales have its
consumption in its own domestic market which is present. There is a rise with respect to
that of piracy but the IPR protection is rising with respect to it and because of this there is
also an increase in that of the sales as well.
v. China
The 10 th five year plan of that of China explains as to how important the software
industry has been with respect to the national security as well as that of the economic
progress of it. As there is a strong policy in place that is why there is a abundant growth
with respect to the software with an average growth being that to around that of 30 % of
the sales. The process was increased more with respect to China joining the WTO as well
as liberalization taking place.
In the year of that of 2000, the Ministry of Information Industry had gone for subsidizing
the Chinese Academy of Science for the commercialization of the Red Flag Linux, which
is the Chinese version of Linux33, this step was taken so as to attain self sufficiency so as
to protect the national security. In the year of 2002 , Microsoft entered into an agreement
with that of the Chinese Government with respect to the restricted use of that of the
source code of the Windows operating system . Then Microsoft became more acceptable
within the government. Piracy and the counterfeiting is considered to be largest problem
32 Brazilian Economy,also available at http://www.comnet-it.org/pubs/newletter/jan98/brazilian.html.
33 Linux , also available at www.redflag-linux.com/eindex.html.and www.bsw.gov.cn.

in China . Around 60 % of the computers in China run onto the Microsoft Windows but
piracy leads to 5% less revenue than what it would be if the customer pays for the newly
sold computers.
iii India
India34 showed a growth rate of that of 30% and the year of that of 2004 , there was a
reach of 3.63 million units which were registered and then there was 20% growth in the
year of that of 2005. There is a growth because of the consumption on the part of the
industries like that of telecom, financial services, BPO as well as banking and others. The
working with respect to the operating system in the desktop is around 74% of that of the
windows while there is 2% of Linux.
The OSS initiative which the Indian Government has taken with respect to the open
source to develop free software is established. There is also a growing attraction as that to
towards the Linux usage in India . India has been successful with respect to sharing of the
source of Microsoft in India. There are also new inventions like that of the Hindi
GNU/Linux distribution which is called the Indix. There are also talk with respect to the
introduction of linux even in the research institutions or the establishments which are
there. The best way to transform the developing ecomony into that of a knowledge
economy can be by the way og use of the software.
34 Saxenian Anna Lee, Global from emerging markets: An engine for growth,2003,p.30 .

CONCLUSION
Open Source Code is a software –development model wherein this model provides for the free
a possibility for a person to edit it according to their own wishes.
Under the concept of the other products which has its basis on that of intellectual property with
respect to the software is generally used with respect to its use and not for being sold.
Eventhough it is seen with the opern source it can be used freely but when it comes to its
distribution then it cannot be done without a licesnsing agreement.
Creative commons is a concept where there is a non profit organization which has its
headquarters in California , United States . The main work of the organisation is to provide for
the creative work to be provided so that it can be provided legally35 to the people on the internet
. This organization provides for the license for the copyright which is known as the creative
commons license which is provided for the public at free of charge. Then there number of
concepts which has been discussed by the author from different types of licenses besides the
GPL which are related to the open source software then also the analysis based on that of the
cross country analysis shows as to what all things are there with respect to the growing demand
of the open sources like for say linux and it is resulting into growing of the economy of the
developing countries which are there.
35 https://wiki.creativecommons.org/FAQ.

Open Source Code and Software Issues in IPR

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