Open Source Software: Evolution of Intellectual Property Rights Copyright to Copyleft with Special Reference to India and USA

Tabrez Ahmad

College of Legal Studies, University of Petroleum and Energy Studies (UPES)

May 10, 2009

Abstract: Today, the operating system most closely associated with the General Public License (GPL) is Linux, developed originally by Linus Torvalds, a Finnish university student. With Linux gaining an increasingly larger position in the world markets, the validity of the GPL takes on increasing importance as well. There is a robust debate by open source community on the intellectual property issues surrounding the GPL, the most popular of the open source software licenses, and Linux, the most successful product of the GPL to date. The Linux community has evolved its open source development model to accommodate realities of Intellectual Property law and the need to secure both significant commercial participation and widespread industry adoption. Erroneous ruminations about the GPLs legal effect threaten to undermine this important adjustment consensus. Legal practitioners have the opportunity to help the community solidify this evolution by explaining its utility in both legal and technical arenas. The paper will answer the following vital questions: What will be the impact of the new GPL to the problem of software protection and also compare with other existing licences The paper argues that this process has led the Linux community to adjust its open source development model to accommodate realities of copyright law and the

need to secure both significant commercial participation and widespread industry adoption. The paper outlines the GPLs legal shortcomings and boundaries to enable commercial participation in open source projects. The paper also offers a legal analysis of the new version of the GNU General Public License, and will also look at the debate that it has generated in the Free and Open Source community. The model employed by Linux to accommodate closed and open source code is a common sense adaptation of the GPL. Now this is the duty of legal practitioners to encourage the community to embrace and solidify it. Courts and market inertia will force both the open source and closed source models that developers use to coexist. Neither purely open source nor purely closed source models for Linux will succeed without the other. The paper is divided in four parts. Part I of the paper examines the history of the free software movement including the development of the Linux operating system and also highlights the stated objectives and terms commonly used by free software proponents. Part II of the paper explains the GPL and discusses implications of recent litigation and possible attacks on the licenses validity. Part III applies the United States and Indian Copyright Act and relevant international case law to the GPL-licensed Linux operating system. Part IV discusses the reconciliation of commercial software interests with the free software objectives for which the GPL acts as a symbol. Keywords: Open Source, Closed Source, General Public License,Linux, GNU, Copyright, IPR working papers series