Open source software and WIPO

A recent attempt to bring this debate into the forum of the World Intellectual Property Organisation has been derailed by lobbyists for the proprietary software industry. A proposal,[1] signed by two Nobel prize winners among over 60 others, was presented to WIPO in July 2003 asking for a meeting to discuss “open and collaborative projects to create public goods”, and citing open source software as an example of this type of project. The aim of the debate was to consider the merits of opening up access to material protected by intellectual property rights in a wide range of fields, with the aim of maximising the benefit to the public as a whole through the development of better technology, made possible by pooling ideas. The proposal argued that “excessive, unbalanced or poorly designed intellectual property protections may be counterproductive” and, in relation to open source software, that:

“WIPO provides frequent forums where firms that embrace closed and proprietary development models express their views, but very little is heard from those who have embraced open and collaborative development models for free software.”

However, lobbying of WIPO and US government bodies by proprietary software companies to get them to oppose the proposed debate led to the planned debate being killed off. The US Patent and Trademark Office’s Director of International Relations, Lois Boland, was quoted as saying that “open source software runs counter to the mission of WIPO, which is to promote intellectual property rights.to hold a meeting, which has as its purpose to disclaim or waive such rights, seems to us to be contrary to the goals of WIPO”.

This statement has come in for much criticism,[2] but it highlights the tension in intellectual property law between promoting innovation and protecting the rights of innovators. The US Constitution, for example, confers on Congress the right “to promote the progress of Science and useful Arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries”.[3] Some have taken this to mean that any system which is not based on exclusive rights and the “profit motive” goes against the fundamental principles of intellectual property law. Darl McBride, President and CEO of SCO Group, Inc., the company currently embroiled in litigation with IBM over alleged unauthorised use of SCO’s Unix code in IBM’s work on the Linux open source software, has posted an open letter setting out SCO’s view that open source software is unconstitutional, because it is based (say SCO) on the belief that “the progress of science is best advanced by eliminating the profit motive from software development”.[4] Others, including Professor Lawrence Lessig of Stanford Law School (one of those who signed the WIPO proposal), say that the idea that granting intellectual property rights in itself promotes innovation is misguided. Citing examples such as the Internet and the global positioning system, Lessig argues that opening up new systems so that anybody can contribute ideas and refine those contributed by others is the best way to create successful new technologies.

What exactly is open source software?

The term “open source” refers to software whose source code is made freely available to the public, unlike proprietary software (such as Microsoft’s), whose source code is usually a closely guarded secret. Proprietary software is usually made available only as binary code, which is the format used by the computer, and is indecipherable to humans. Because source code is a program in the format written by the programmer, including the programmer’s comments, a programmer who has access to the source code can find out exactly how a piece of software works, and can modify it or make it interoperable with other software or hardware. A detailed definition of open source software can be found at www.opensource.org, the Web site of the Open Source Initiative, a not-for-profit organisation dedicated to the promotion of open source software.

The advantage of using open source software lies in the relative ease of updating and maintaining it (provided those working on it have the necessary programming skills). Since the source code is made freely available, anyone who holds a copy of the software can identify and fix any bugs or security glitches in it, which means that open source software operating systems can be updated much more frequently than proprietary systems. However, users of open source software are obliged to comply with open source licence terms, one of the fundamental principles of which is that modifications to the software must be offered freely in the same way as the original version of the software.

Free software?

The Open Source Initiative is keen to point out that it is “a pitch for ‘free software’ on solid pragmatic grounds rather than ideological tub-thumping”. The Free Software Foundation (FSF), on the other hand, certainly does take an ideological stance. The development of their GNU operating system (GNU stands for “GNU’s Not UNIX”) was motivated by their belief in free software. As the FSF points out (see www.gnu.org), in the context of open source software, free is as in ‘free speech’ not as in ‘free beer’. Their definition of “free software” requires four freedoms to be present: to run the program for any purpose; to be able to study how it works and adapt it to the user’s needs (which can only be done with access to the source code); to redistribute copies “so you can help your neighbour”; and to be able to improve the program and release improvements to the public “so that the whole community benefits” (which again requires access to the source code).

But even this does not mean that open source software cannot be commercially exploited; unlike proprietary software licences, the GNU General Public Licence (GPL), published by the FSF even allows the licensee to commercially exploit its own adaptations of the original software. This is often done through charging customers for support services and warranties. But what the GPL does require is that all licensees of these adapted versions must be granted the same freedoms. This system of “copyleft”, as open source advocates call it, relies on traditional copyright law and contract law (in the form of a licence) to force licensees to pass on the same freedoms they enjoy – so preventing more selfish users from appropriating free software into the proprietary domain.

SCO v IBM – the end of open source?

Open source software is not without its controversies. Most recently, SCO (owner of intellectual property rights in the proprietary UNIX operating system) brought an action in the Utah courts against IBM, accusing it of incorporating UNIX code and ideas into its work on the Linux operating system kernel, in breach of SCO’s trade secrets. Linux began as a non-profit, non-commercialised kernel for an alternative operating system to UNIX but, thanks to its being open source, it has been developed and refined into a major player in the software industry. According to SCO’s claim, much of this work was done by IBM, illegally using its knowledge of UNIX to hijack the then small-scale Linux software and turn it into a rival to SCO’s product. Interestingly, while SCO’s original claims did not include breach of copyright, the company has demanded that commercial users of Linux should pay licence fees to SCO, on the grounds that Linux includes code which SCO owns the intellectual property rights in. Some fear that this may be the end of open source software, with Linux users potentially facing huge fees for using what they thought was freely-available software if SCO is successful. SCO has now been ordered by the court to reveal the sections of Linux source code it claims are copied or derived from its own code.

Whatever its outcome, the SCO v IBM litigation illustrates a fundamental point that licensees of any open source software should bear in mind, particularly since open source software by its nature can include code created by many different programmers: as many open source licences do not give warranties and disclaim all liability on the part of the licensor, the licensees often do not have protection against being supplied with software that infringes a third party’s rights, which could leave the licensee exposed to claims from that third party.

Where next for open source?

While open source software has gathered a great deal of support in recent years, most software is still protected by the traditional application of intellectual property rights. This can often have the effect of preventing others’ access to the ideas contained in the software, an effect which exceeds the intended scope of both copyright and patent law.[5]

WIPO’s Assistant Director-General, Francis Gurry, has indicated that he is very much open to the idea of having a debate about the fundamental policy objectives of intellectual property law as they apply to collaborative projects, but it seems that the outcry over this proposal has ended the possibility of using WIPO as the forum for that debate. Indeed, while the proposal only cited open source software as one example of a collaborative means of development among others, it seems that it was the proprietary software industry’s hostility which killed off the debate. Gurry was quoted as saying that the debate had become polarised around the US software industry, and the possibility of holding a truly international debate on intellectual property issues in a range of sectors was “increasingly remote”.

While software companies need to be able to protect and profit from their investment in their software, it is certainly worrying that certain interests within the industry can stifle international debate about fundamental issues in intellectual property. This lack of discussion does not seem to have affected the huge growth of open source software in recent years, but it seems that legislators and international organisations may be left trailing in its wake.

Caroline Barton is a lawyer in the Technology Law Group at Field Fisher Waterhouse.