This article is written by Ishika Kushwah, a third year B.A. LL. B (H) student, Sage University, Indore , during her internship at LeDroit India.
Content of the article
1. Introduction
2. History of Open Source
3. Principles of Open Source Licensing
4. Different types of Open Source Licensing
5. What all thing should be known to a lawyer about Open Source Licensing
6. Conclusion
Keywords
Open source, source code, open source license, permissive license, copyleft license, GPL, MIT license, copyright law, contract law, license compatability, proprietary software
Abstract
Open Source is a development model that makes software source code available to everyone for free use, modification, and distribution. An Open Source License is the legal document that grants this permission, as long as users follow its terms. The main principles include free usage, access to the source code, non-discrimination, and giving credit to the original creators.
Licenses can be grouped into a few categories:
– Permissive Licenses (like MIT and Apache 2.0) offer a lot of freedom, usually just requiring attribution, and they allow for integration into proprietary products.
– Copyleft Licenses (such as GPL) are a bit stricter, requiring that any modified or derivative work also be shared under the same open source terms, which is often referred to as “viral.”
– Weak Copyleft Licenses(like LGPL) strike a balance, permitting linking with proprietary software while keeping any changes to the original open.
For lawyers, grasping these licenses is essential since they derive their enforceability from Copyright Law (treating software as ‘literary work’) and Contract Law (viewing licenses as binding agreements). Failing to comply is often seen as copyright infringement. Lawyers need to guide clients on the risks of “contamination” from strong copyleft licenses and ensure that all components are license-compatible.
Introduction
Before starting to know with open source licensing we should know about the basic term open source, open source license.
What is open source?
Open Source is a model of software development where the source code is made available to public allowing them to use, modify and distribute it freely.
History of open source
The concept of sharing software source code predates the term of open source and the evolution has took place continuously over time.
- 1960s: In earlier times the sharing software and source only took place in educational institutions like IBM and universities.
- 1970s: This share came to an end when the proprietary software started to dominate, the souce code were kept secret and the trend became outdated of sharing.
- 1980s:The Free Software Movement(FSM)
-1983: Richard Stallman launched project to create a free Unix like operation system called as GNU Project, it was free for public to use, study and change, distribute according to themselves.
-1985: The softwares like Free Software Foundation (FSF), GNU, General Public License (GPL) were created to legally enforce the freedoms which was known as copyleft.
- 1990s: Open Source and Linux’s Ascent:
-1991: Linux kernel named software was introduced by Linus Torvalds with a free software license which later combined with other tools like GNU Tools to make it a complete, operational system.
-1998: The word “Open Source” was originated to encourage the development model to the business world with the main focus on practical things like quality speed of development and not just the FSM’s philosophical freedom. The term Open Source Initiative was found to define it and promote it in public.
New source code was found for the web browser by the company Netscape which later became the Mozilla project which lead to revealing of commercial viability and power of the model.
-1990s onwards: Many projects like Apache, HTTP server and MySQL that came in market made people believe that open source will dominate enterprises and web infrastructure in future.
Slowly this term is taking over every place, it is not known to software developer but it is known to all the person who is using a software .
What is open source license?
An open source license is a document that grants a permission to public to use, modify and distribute software with its source code according to themselves until and unless they comply with the rules and regulation made by the owner.
Principles of Open-Source Licensing
Free usage, modification, and sharing: Users are allowed to use, alter, and distribute the software, whether in its original or changed form, without restrictions.
Availability of source code: Licenses mandate that the software’s source code must be accessible to users.
Non-discrimination: Licenses cannot exclude any individuals, groups, or areas of work from using the software.
Technology neutrality: The license must be applicable regardless of the technology involved with the software.
Credit to original creators: Most licenses require preserving the acknowledgment of the original author.
Different Types of Open-Source Licenses
Permissive Licenses
Overview: These licenses impose few limitations and grant broad freedom to use, modify, and distribute the software, even allowing incorporation into proprietary, closed-source products.
Requirements: The key condition is usually to retain the original copyright and license notifications in distributed copies.
Examples: MIT License, Apache License 2.0, BSD licenses.
Copyleft LicensesOverview: These licenses ensure that any derivative or modified versions must be shared under the same or a compatible copyleft license, guaranteeing the software and its derivatives remain open source.
Requirements: Any distributed modified work must be licensed under the same terms.
Examples: GNU General Public License (GPL) 3.0, GNU Affero GPL, Mozilla Public License 2.0.
Weak or Limited Copyleft Licenses Overview: These strike a balance by requiring certain contributions to remain open but allowing the software to be used in proprietary software without forcing the entire application to be open source.
Requirements: Modifications to the original files must be licensed similarly, but linking with proprietary code is permitted.
Examples: GNU Lesser General Public License (LGPL), Mozilla Public License (MPL).
Open source licensing in India
Open source software licensing in India is primarily governed by India’s general laws like Intellectual Property (IP) Law and Indian Copyright act, 1957, the Indian Contract Act, 1872, Information Technology,2000, even though the laws does not clearly define or recognize “open source license”.
What all things should be known to a lawyer about open source licensing?
To effectively advise clients on Open Source Software (OSS) licensing, a lawyer must understand Copyright Law, Contract Law, and Corporate IP strategy.
Essential Knowledge for Lawyers
1. The Legal Basis: IP and Contract Law
Open source licenses signify a set of rights granted by the copyright holder and, thus, are a legal instrument derived from Copyright Law and Contract Law.
Copyright Act (e.g., The Indian Copyright Act, 1957):
Foundation: Software code is classified as ‘literary work’ or ‘computer programme’ under the Copyright Act. The open-source license is in fact the copyright owner giving permission to other people to carry out exclusive rights, like reproduction, adaptation, and distribution, which if done without authorization, would be infringement.
Licensing Power: It is Section 30 of the Act which confers the copyright owner the right to confer an interest in the work by means of a license. Even though open source licenses are single-sided for the most part, they get their enforceability from this authority.
Infringement: A lawyer must be aware that if there is a non-compliance with the terms of the license (for instance, failing to provide source code when it is required), it results in the termination of the license, and therefore using the software is an act of copyright infringement.
Contract Act (e.g., The Indian Contract Act, 1872):
Validity: In general, open source licenses are considered binding if they are unilateral contracts (where acceptance is implied by using the software) or bare licenses (permissions regulated by copyright law).
Breach: A failure to conform to the terms (such as an attribution requirement) can be breach of contract which results in the giving of remedies besides copyright infringement claims.
IT Act (e.g., The Information Technology Act, 2000):
Digital Context: The IT Act is not directly involved in licensing, but it does cover matters related to cybersecurity and data protection. In case open source software is used without proper vetting, this can lead to security vulnerabilities, which may be considered as a failure of due diligence required by the provisions of the IT Act.
2. Understanding License Types and Obligations
A lawyer should have the skills to identify different licenses and figure out the problems of using open source code in order to give the right advice to the clients.
Copyleft Licenses (or Reciprocal Licenses):
Key Obligation: The most important feature is the “viral” property. Therefore, if anyone modifies the licensed code or merges it with their own proprietary code and then shares the resultant software, they usually ought to publish their entire combined work under the same open source license.
Risk: The lawyer should caution the client that employing strongly-copylefted code in a commercial, proprietary product might result in their secret source code being “contaminated” with the consequence of having to disclose it.
Analogy: It can be compared to a chain letter—using it means that you have to keep sending it with the same rules to the next person.
Permissive Licenses (or Non-Copyleft Licenses):
Key Obligation: These are significantly less restrictive. Mainly, they require that the original author be given credit (attribution) and that the copyright/license notice be kept.
Freedom: Users are permitted to embed the code in proprietary/closed-source applications without having to reveal their own source code.
Analogy: This is an example of a polite request—you can use my recipe any way you want, only tell me who wrote the original.
License Compatibility:
The Conflict: Lawyers have to confirm that license terms of all open source parts that are put together in one product do not contradict each other.
Example: The mixture of a strong copyleft license (which requires all code to be open) and a permissive license (which allows code to be proprietary) might result in the inability to comply with both.
3. Key Contractual Provisions
Every lawyer must take a close look at certain common clauses found in open source licenses:
Warranty and Liability Disclaimers: The majority of open source licenses allow the software “AS IS”, thereby explicitly denying all guarantees and limiting the author’s liability for any kind of loss. Thus, the lawyer should communicate the resulting potential risk to the client.
Patent Grants: Most major licenses (like Apache 2.0) that are recent typically have a clear declaration of an express grant of patent rights from the contributors that protect users against any patent infringement lawsuit relating to the code.
Source Code Provision: For copyleft licenses, there is an explicit obligation to provide to the recipients full and corresponding source code without any restrictions.
Examples of Open Source Licenses and Implications
1. GNU General Public License (GPL) – Strong Copyleft Rule: Whenever a software program is given along with code that is licensed under the GPL, the overall combined work should be GPL-licensed as well. Hence, the entire source code ought to be accessible to anyone who asks for it.
Legal Implication: If a company that creates proprietary software links statically or closely integrates a library licensed under GPL, and still wants to keep its source code confidential, it is committing a copyright infringement. Hence the company must not do that.
2. MIT License – Permissive Rule: The rights are given to anyone to use, copy, modify, and distribute the software both for private and commercial purposes. The conditions that are compulsory are only two, i.e., the original copyright notice and the license text must be included.
Legal Implication: A company is allowed to use, modify, and integrate code under the MIT license into its closed-source, commercial product without the need to share its proprietary modifications. The provision is very permissive, thus, it is a very low-risk option for corporate use.
3. GNU Lesser General Public License (LGPL) – Weak Copyleft Rule: This license is a compromise. Normally, it limits the application of the copyleft requirement only to the component that is LGPL-licensed, rather than the whole program that uses it.
Legal Implication: An app can dynamically link to an LGPL library (as in the case of a plug-in) without the obligation to reveal the proprietary code of the app. The lawyer should ensure that the client follows the technical guidelines for dynamic linking to keep this separation intact.
Conclusion
For the conclusion, I would only say that lawyers should have the laws related to open source licensing because it is one of the most emerging topics as time is advancing and this time is the time of scientific advancement. New inventions and making softwares has become trend nowadays, so it will be helpful to have knowledge of tech related laws to ease the work later.
