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Dissertation
Immaterialgüter- und Wettbewerbsrecht

The Open Source Software Paradigm

The Open Source conundrum has given cause to several critics to raise issues regarding the model of protection for software. Critics view this conflict as an opportunity to revisit copyright and patent jurisprudence in context of software programs, some going to the extent of proposing a sui generis approach for software protection. Making innovative use of intellectual property and contract laws, the open source movement has fashioned a new to software development emphasizing on community-user driven development instead of employer-employee driven development.

Last Update: 01.03.11

The legal regime of Open Source (OS) is essentially based on Intellectual Property and Contract laws.

OS proponents disapprove of the “proprietary” model of copyright protection. They perceive it as a deviant application of the justification for copyright law - to induce innovation. OS does not relinquish copyright, but subverts the foundation upon which the proprietary software industry exists - copyright in OS is used to confer a right to distribute.

The OS movement, perceive patents as the very antithesis of innovation by creating a “thicket” by which large numbers of ‘building block’ programs have become legally inaccessible. The OS movement is shoring its resources to combat any potential threat through innovative techniques like license provisions, creating patent pools, establishing prior art databases etc.

OS developers have adopted certification marks to indicate if a particular software complies with the OS scheme. Using certification marks as opposed to trademarks gives recognition to the OS approach as opposed to a particular OS software product. This also avoids several hassles which the OS model would have generated with trademark use like policing of the mark.

The OS licenses are a reflection of the movement’s philosophy. Some critics however, are of the view that licenses are vitally and intrinsically flawed as instruments of OS development. Contract law is perceived as a stopgap measure to patch broken copyright jurisprudence.

Propagation is the central aspect on which the OS policy, especially the GPL hinges.

The concept emphasizes reciprocal obligation. Known by various informal terms, viz. ‘Viral’, ‘Taint’, ‘Infectious’, and ‘Copyleft’, it has finally been formally defined in GPLv3 as ‘Propagate.’ It has always been most deliberated upon, howsoever, defined.

The OS faction opposes the use of DRMs on ideological grounds. Although GPLv3 does not ban the use of DRM, it creates license provisions which in essence negate their purpose.

Scholars vary in whether they identify OS licenses as a contract or a license. Stemming from it, there is a divisive debate whether and in what manner it can be enforced. The distinction between contract and license is not merely academic; it has deep legal consequences, relating to remedies.

Persons

Doctoral Student

Vikrant Narayan Vasudeva

Doctoral Supervisor

Prof. Dr. D. S. Sengar

Main Areas of Research

Schutzgrenzen im Immaterialgüterrecht