This website uses cookies for reasons of functionality, convenience, and statistics. If you consent to this use of cookies, please click “Yes, I agree.”

Copyright and Open Source Systems.

The open source software changes the content of the concept of licensing. Currently, this institute is governed by a new sphere of copyright law (mostly in the Anglo-Saxon legal doctrine), which means that it is developing rapidly and its legal qualification is relatively complex due to theoretical and technical considerations. The Source Code is a work similar to a literary and resembling a written book created by one or several authors, which also complies with the wording of Article 10 of the Berne Convention ("computer programs, whether original or object-oriented, are protected as literary works in the framework of the Convention "), the same opinion being later reflected in Article 10 (1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Thus, the source code becomes an author's work automatically with its creation, with the respective authors, regardless of whether it is registered somewhere or not, and the author decides whether to distribute it in the public and in what way. This distribution does not give users of the source code any rights other than to use it.

Some authors use this way: for example, the Qmail Internet Mail is developing in a similar way. Users can download the main content and use it but cannot create similar works and distribute them. That is why the authors of Qmail distribute it through the so-called patches of the original source code, which is the equivalent of an added chapter from a book without the original content; therefore, the final user is responsible for collecting the individual pieces in a block that makes sense. The key point here is that the added chapters, the so-called source code patches, are copyrights of the respective "relative" followers. So, they cannot redistribute Qmail with their patches, as Qmail's primary author cannot spread patches through Qmail without the patch writer. The foundation of the software-licensing concept is the Free Software Foundation (FSF), which was created in 1985 in the United States, and it is committed to promoting the rights of use, study, copying, modifying and distributing of computer programs among computer users. FSF presents the development and use of free software, especially the so-called GNU (GUI) operating system, widely used in its GnU / Linux version. The GJU project started in 1984 with the idea to develop and complete Unix as an operating system representing free software of the GI-U system. The types of GJU operating systems that use the kernel called Linux are the most widely used at the moment. That's why these systems are often referred to as "Linux," but it's right to call them "GnU / Linux" systems. Contemporary practice shows that all major companies are turning to investing in free software, even the computer mastodon “Microsoft”, who was particularly conservative in this direction. Some authors are on the opinion that in this context copyright is a serious obstacle, but to me it is the opposite - it is the legal way to protect and guarantee the creation of works on the basis of cooperation (co-authorship), because each author has copyrights and control over the distribution policy with regard to its individual parts of the "common" work. In this hypothesis, there is a so-called divided co-authorship in which each of the co-authors has participated in the creation of a part of the work, and this part can be distinguished as an independent work. If all the authors agree on the licensing rules, a co-author work is produced and everything is fine, but if not, a complex legal situation occurs. The "Open Source" license is this agreement that puts things in place regarding the distribution policy so that before they start distributing, the authors agree that they will work in a joint co-author project. Each author has to accept the terms and conditions before the project is distributed, and each individual author must be technically involved in the outcome of the license agreement whenever it is changed. 

"Open Source" - Definition. "Open Source" does not mean only access to a specific source code. The terms and conditions of distribution of open source software must meet the following criteria:

  • Free distribution - Licensing cannot impose restrictive measures on either party for the sale or provision of software as a component of a fully distributed software containing programs from several different sources.
  • Source code - Each program contains source code and must allow the distribution of the source code as well as a compiled form. When any form of a product is not distributed through a source code, the prevailing view should be well known that it is preferable f the source code is used for no more than reasonable distribution regarding the downloading of non-paid software content over the Internet. The source code should be in the preferred form for any programmer who wants to modify a certain program. The law forbids discussions on the so-called “blurring” of the source code. Intermediate forms associated with achieving the same goal through a preprocessor or other type of translator are also prohibited.
  • Derivative works - the license must allow for modifications or derivative works, distributed on the base of the same terms governing the license of the original software.
  • The authors' source inseparability - the license may restrict source code from a realized distribution in a modified form only if the license permits the distribution of "patch files" with source code for the purpose of modifying a program during construction. The license must explicitly allow the distribution of software based on a modified source code, with derivative programs having a name or version number different from the original software. • the license must not discriminate any entity or group of entities.
  • No restrictions on the scope of application - the license may not restrict the use of the program in certain specific areas. For example, there can be no restrictions on the use of the program in the business sector or for genetic research.
  • Distribution of the license - the rights fixed in the license must be applied to everyone so that the programs that will be subject to subsequent distribution will not need to have a separate license for the authors.
  • The license should not be defined as a product - the rights applicable to the program should not be related to programs that are part of a particular software distribution. If the program is isolated from the distribution and is used or distributed outside the program licensing rules, all parties benefiting from the subsequent distribution of the program should have similar rights to that entity that has ensured the joint creation of the originally distributed software.
  • The license may not restrict other software - the license may not contain restrictions on other software that is distributed along with the licensed software. For example, the license cannot require all other distribution programs as a means to be in the form of open source software.
  • The license must be technologically neutral - no license condition could impose any strictly defined individual technology or interface style. How and who uses the "open source" concept? More recently, it has become fashionable to use the open source platform for "open-source digital projects" organized by the Wikimedia Foundation. The websites of this organization, such as Wikipedia and Wiktionary, have embraced the idea of the GNU Free Documentation License (GNU FDL). These licenses are designed to adhere to the principles that are imposed by various open source software licenses for software development. Many of these licenses ensure that the content remains free for re-use and the source documents are made easily accessible to third-party (code-based) users. As a result of all this, the changes made to the content are easily implemented back into the system.

An example of such an "open source" license is the GNU Free Documentation License. This is an open source license created by the GNU Free Software Foundation. Originally, it was designed for the GNU community software product documentation. Under this type of licensing, copies of the underlying document, even modified, must be distributed under the same license rules, which is actually a true copyright concept. Another interesting point is that the commercial sale of these copies is in fact authorized by the terms of the license as long as they are retained in a format that allows subsequent editing for the free development of the source. All of this is tied to Wikipedia's main educational goal, namely the realization of free distribution and use of knowledge. The GNU license is legally compliant with the copyright laws of different countries, respecting the basic principle embodied in the Bulgarian Copyright Act (Art. 15 and 18) that only the author of a work may authorize its use, distribution and / or change. Any work published with the GNU license gives each author the right and technical opportunity to use, modify and distribute his work, provided that the new version is offered under the same copyrights and license. For the "Wikimedia Foundation", these legal conditions ensure that the knowledge and know-how provided will be available to any user, and that at the same time no author of any part of the code has the right to refuse to grant the change and distribution rights, because under the license, in this case he himself loses his rights in the described context. Thus, the GNU license provides for the wider distribution of Wikipedia content, and anyone who receives the content has the following rights: - to distribute and publish content (with or without a commercial purpose), which can only happen if each subsequent user has the same rights as the author, guaranteed by the corresponding copy of the GNU FDL license; - to receive the new content in a plain text format suitable for use and change (for example, in printed copies of Wikipedia, the authors of part of the content must necessarily provide free access to the source text they have used, for example on a CD)- to have the right to distribute content under similar terms of the GNU license, and if changes or improvements are made, they must be mentioned as such and to be subject of the same license. Wikipedia is the largest online project for an online-based encyclopedia that uses open source licensing under the GNU license. All authors who create and upload content in the free encyclopedia automatically publish their works under the terms of the GNU license as they have agreed in advance with its legal copyrights. 

Similar to the concept described is the one on which the world's largest internet library is based under the name "Project Gutenberg" ( This website exists thanks to a voluntary work of copying, archiving and distributing cultural works from around the world, with the majority of the content being the full texts of literary works - mainly books with expired copyrights that have become public. The project was founded in 1971 by the American writer and publicist Michael Hart, who has set himself the task of making these literary works as accessible, long-lasting in the public domain and in free electronic format as possible so that they can be used on any computer for whatever objectives. To facilitate the work of individual authors on the project, the Open Source licensing is used, and each of them is required to use the so-called "Guten Py" text editor - a free reading program and offline navigation in the Gutenberg Project catalog, written the programming language "Python GTK" for Windows and GNU / Linux.

What is the General Public License (GPL)? This is a "General Public License", which embodies the concept of the so-called "Copyleft". "Copyleft" idea is trying to oppose the copyright, especially regarding its purpose, which governs the joint creation and development of software products. "Copy left" refers to the legal copyright definition and represents a practice of using copyright law to remove restrictions on the distribution of copies and to modify versions of works in others, requiring the same rights to be retained for the "revised" versions. "Copy left" is also a form of licensing that can be used to modify copyrights for works such as computer software, literary works, music, and fine art. The copyright law allows the author to allow others to reproduce, adapt or distribute copies of his work, obviously with an explicit, usually written, agreement. Contrary to this, the author may, on the basis of the Copy Left  licensing scheme, grant any person who receives a copy of the work permission to reproduce, adapt or distribute the work for as long as any resulting copy or processing is also limited by the analogous "Copy left" licensing scheme. "Copy left" may also be classified as a copyright licensing scheme in which the author distributes some, but not all of his copyrights guaranteed by copyright law. Instead of allowing the work to be publicly distributed (which would deprive him of copyright restrictions), "Copy left" licensing allows the author to impose not all, but some copyright restrictions of the one who wishes to engage with the activities that would otherwise be considered through the prism of copyright infringement. The widely used original "Copy left" license is "GPP". Similar licenses are also issued on the basis of the so-called "Creative Commons". When the author realizes part of a computer code in the context of GPL, he guarantees the following rights to the source code recipients:

  • Everyone can use the code anywhere in any situation;
  • Everyone can redistribute the code to anyone else, as long as the code is included in the GPL’s distribution license;
  • Anyone can create a similar or code-based work and distribute it as long as the resulting code is licensed by the GPL. This way GPL allows the author to effectively use copyright laws as a "trap" to discredit copyright in particular by allowing everyone to join a co-developing co-author in a broad sense. The sooner two authors combine their code under GPL's provisions, the sooner the source code will be available in the GPL license, where everyone can contribute to a joint project in the form of a joint work limited by "GPL". From this point of view, GPL is a "bleeding wound" ot the top of the copyright system. However, while this concept attempts to partially reject copyright, it must be held in mind that only the copyright owner can use copyright law to really apply the GPL license.

Therefore, the Free Software Foundation, created in the United States, recommends that the authors freely choose whether to assign the copyrights to their works to that organization in order to create a strong legal community to defend the GPL, because not all software authors believe this is a good idea. Other open source licenses such as BSD and Mozilla also allow for subsequent distribution, but have fewer requirements for the conditions for this distribution. BSD, for example, allows the redistribution of a work or any processing without source code if this is the desired path. Some believe that these licenses provide more freedom for users than if they would be included in the rights guaranteed by the GPL. Others are of the opinion that only "GPL" genuinely respects consumer rights by ensuring that no one can copy their original works of art. There are also significant concerns here. We do not know for sure what the so-called software revisions are. No one has yet given a precise definition of this. "GPL" implies that the revisions are those statically or dynamically attached to the original work.

Currently, this may change with the new version "GPL v3". The output is obvious - each author must require that the code written for a particular purpose, after being seen, is followed by a source code that has the same purpose that actually forms the basis of the newly created processing. This will allow you to see a detailed portion of the source code written by someone else that effectively violates the legal requirements imposed for the source code license. Another important feature is that if any source code author owns part of the copyright authority over it and transfers it under the GPL's licensing scheme, he has no right to revoke those powers that it has released for free use to other users of the license. The author only has the option of choosing whether to stop distributing the source code, but if any user has already acquired it, he can choose whether to continue using it without permission from the author and on a legal basis. However, the author may choose to distribute his own source code on the basis of different licenses and no one can do so on his behalf and on his account. That is why some authors prefer to publish their source code in the so-called "double license". This mode of licensing is complex because it is related to the moment the author begins to engage the community in its own development. What do I mean: each author is the sole owner of his copyright in respect of a particular part of the source code, and if one wants to distribute the same in multiple licenses, he must first convince all other authors. 

These legal complications have led to a situation where the new "GPL v3" has become the apple of discord between Microsoft and Novell in connection with their patent agreements on open source software. Microsoft has begun to work with open source community software companies to improve the purely technical interoperability of its customers working in mixed source environments that has led to so-called "IP provision" for the benefit of the company of Bill Gates. Thus, partnership with Novell and other Linux platforms has led to a new business and technical collaboration based on the open source concept, which generally involves virtualization based on standard management systems leading to the interoperability of certain electronic tools. What exactly is the legal problem? "GPLv2" users sign or agree to a license agreement because they are guaranteed to use the software patent (at least such is the practice in the US, software patenting is inadmissible in the European legal system). Thus, users are guaranteed that the company that has provided them with the corresponding copy will have no legal claim to breach the patent with them or with third parties to whom they provide a copy. In order to develop a purely commercial operation of its software patents, Microsoft has concluded an agreement with Novell that the mentioned patents could be used under the GPLv2 concept. As a result, GPL v3 licensing appears, but Microsoft refuses to distribute its software patents through it. Why? In the first place, the "GPLv2" and "GPLv3" licenses are legally incompatible, as there is no legal means of combining them into one code program distributed under "GPLv2" with one distributed under "GPLv3". This is because both "GPLv2" and "GPLv3" are copyleft contracts, each of which advocates the view that if a user uses source code distributed under open source licensing in a larger program, then the larger program should also be disseminated under these conditions. Secondly - "GPLv3" licensing denies "tivoization". The tivoization is an electronic process driven by GPL-based hardware that the user cannot change because the computer stops working if it identifies modified software. Tivoization as a software phenomenon is closely related to the practice of the most renowned digital equipment manufacturers, which produce cheap and expensive models of the same device, differing only in the type of software, as well as technical means of copyright protection, which in this case is facilitated by the free software. The name "tivoization" comes from the digital video player "TiVo", which is run by a Linux kernel operating system. Here, it should be noted that the "GNU GPL v2" that is the basis of this program does not require the device to support a modified version of the program. An example for tivoization is the "iPhone" copyright protection software that is applicable to consumer goods distributed through the App Store application. Another analogous example is the T-Mobile G1 software and other Android phones where tivoisation is applied to each copy of their Android Market e-shop security software. It is precisely because "GPL v3" ignores the tivoisation that Microsoft refuses to apply this license as it makes their electronic updates harder and actually hinders their business. Another reason for Microsoft's "restraint" is that the distribution of a program under "GPL v3" protects it from future re-distributor attempts to collect fees from the program users. Last but not least, the particularly interesting fact that the "GPLv3" license provides explicit patent protection for users from developers and re-distributors should be noted. In my opinion, the issue of open source licensing is yet to undergo dynamic international developments as copyright concepts on the Internet are constantly changing dynamically towards more liberal and flexible principles in software product licensing. All these legal aspects have their technical and commercial expression, which, in my opinion, will push the big mastodons on the market to change their "firm" conviction on certain principle issues concerning old business models (e.g. tivoization) of the type - "I am selling you software with the computer, and if you do not buy it from me, the way I tell you and do not update it for a certain period of time with the new version, you're a violator of copyright law. " Given what I have said here, I think that such a type of copyright behavior does not follow the present and will soon be rethought.



Author: Mr.Atanas Kostov – copyright attorney