OPEN FORMAT, OPEN SOURCE AND THE ALLAHABAD HIGH COURT

{This talk was to be delivered in the convention held on 26-28 December 2008 in Calcutta by the Institute for Open Technology and Applications, a society formed under Department of Information Technology, Government of West Bengal (IOTA) to create awareness to create awareness in Free and Open Source Software (FOSS). However due to unavoidable circumstances it could not be done but was circulated in the convention.}

We, at the Allahabad High Court, not only use but advocate open source software (OSS) and open formats. Many raise the question,

'Why is it so? Why do you do it?'

Let me take this opportunity to explain it. 

Mahatma Gandhi once said,

'Means are more important than the end:  it is only with the right means that the desired end will follow.'

His philosophy is deep rooted in law too. Lord Denning, one of the greatest judge of 20th century, in R Vs IRC Exparte Rossminster Ltd 1979 (3) All ELR 385 held,

‘But it is fundamental in our law that the means that are adopted ... should be lawful means. A good end does not justify bad means.' 

In the field of Information and Communication Technology (ICT):

• The end  is dissemination and communication of information; and
• The means are, how to achieve it, implement it; the kinds of software to use, the kinds of standards  to adopt, the kind of formats to employ?

WHAT IS OPEN SOURCE SOFTWARE (OSS)?

The software consists of two parts

• Source code; and
• Object code.

   

Nowadays, computer programmes are written in high level computer languages using compact English words. Only humans , but not computer an understand it. This part is known as source code.

The languages also have a programme called compiler and with its help, source code is compiled into the language that computers can understand. This is called object code or machine code. This runs the computer or any application therein.

Protection - Object Code

There was some debate as to how the object code is protected but Article 11 of the TRIPS mandates its members to provide authors with the right to authorise or to prohibit commercial rental of at least computer programmes and cinematographic works. This has also been so provided under Section 14(b) of the Copyright Act and now in our country, as in almost all other countries in the world, the object code is protected as copyright.

Protection - Source code

Source code is a kind of a description. Copyright lies in the description and source code of a computer programme—being description—is a literary work within the Copyright Act. If it is not published then it is protected as a trade secret. In case it is published it is protected as a copyright and may also be protected as a patent.

Copylefted, Free, and Gpled software

Everyone is not using Intellectual Property Rights (IPRs) to hoard rights in the software. Some are using them in such a way that no one is able to hoard them: by using copyright, they are doing opposite of what is normally done by copyright. It is for this reason that it is called copylefting. This happens if software has the following conditions:

1. The software is royalty  free and no fee is charged for the same;
2. The source code is disclosed;
3. There is freedom to modify the software; and
4. Anyone who redistributes the software, with or without changes, must pass along similar freedom to others i.e. disclose the source code and permit further modification.

Copylefted software is also called free software as there is freedom to modify it. General public licence (GPL) contains  conditions that copylefts a software. Software, under a GPL licence, is also known as GPLed software.

Open Source Software (OSS)
The philosophy of copylefted/ free/ GPLed software  conveyed an anti-business message. Though it not so: it is merely a way of doig business. In the late 1990's, a group of free software enthusias got together in California and started a consortium – called Open Source Initiative (OSI). They also drafted ten guidelines and if the license or conditions under which the software has been released satisfies these guidlines then they called it Open Source Software (OSS). Among the  ten conditions, the three important ones are,

1. The software is royalty  free and no fee is charged for the same;
2. The source code is disclosed; and
3. There is freedom to modify the software.

List of these licenses alphabetically and category wise may be seen here and here.

The guidelines do not contain the fourth condition of Free Software. Thus OSS is more comprehensive.All Copylefted/ free/ GPLed software is OSS but all OSS is not Copylefted/ free/ GPLed software: the sphere of OSS is larger than Copylefted/  free/ GPLed software.

Anyone can copy, distribute or modify OSS. No one infringes copyright by merely using or modifying it. This does not mean that it has no copyright. There is copyright in OSS. In fact, OSS is copylefted by using copyright. Anyone who uses OSS contrary to the conditions governing the license, not only breaches the contract but also infringes the copyright. This has also been so held by the US Court of Appeals for the federal circuit in Robert Jcobson Vs Matthew Katzer on 13. 8 2008.

Advantages of OSS

1. No Copyright infringment in using or modifying it:  There is copyright in the OSS. In fact, OSS is copylefted by using copyright. However in terms of the license conditions, there is no  copyright infringment in merely using or modifying it. Copyright infingement due to unauthorised use is a global issue and adopting OSS will obviate this aspect of it.
2. Lesser cost: OSS is royaltee free; it does not cost anything. The only cost is for services or support for the same. Utilising OSS will reduce the cost of any project. The cost reduction has an impact on the proprietary software too. In order to be competitive, their cost is being reduced.
3. Service sector: Due to historical reason, our English and Maths have always been a plus point. These subjects are necessary for providing services in the IT sector. Adoptions of OSS opens new job opportunities in the service sector.
4. Customise software: Software can not be modified even if source code is disclosed unless there is permission to modify the same. In OSS, source code is disclosed and there is permission to modify the software. This permits everyone to participate in the software movement and also provides opportunity to everyone to customise software. Today, OSS is not only available in HIndi, our national language, but also in almost all regional languages; its adoption offers us an opportunity to take IT movement to the grass root level.
5. Stable: Virus is nothing but a computer programm which effects any other computer programme or computer data. In OSS there can be viruses however there have been only a few. This is because its source code is open/ published. Experts say that it is safe and provides stable environment. This is also strengthened by the fact that Apache (an OSS)  is the most popular web server. 
6. Avoids IPR conflicts:  It is possible to have IPR in the modified software created from OSS but the authors of any OSS do not claim any IPR in the OSS written by them. This is clear from the fact that they permit everyone to use/ modify/ distribute it without any royalty. This not only leads to reduction in the IT cost but avoids future conflicts in the IPR area.
7. Different licenses: There are many licenses that are certified by OSI. This creates some difficulties but different licenses have their advantages too. They can be adopted for different business models:

• GPL is viral: a business model centered around programming and support services should be adopted.
• BSD type licenses are at the other end: they permit creation of proprietary software. The Macintosh Operating System (a proprietary software) is partly based on BSD licensed code.

The other licenses lie between these two and may be chosen by the companies/software developers according to their need.

   

WHAT IS OPEN FORMAT?

Formats are particular way of encoding or a method of storing information so that a computer programme or a device may, understand, reproduce, and,  if the need be, render it for modifications.  

Formats may  be proprietary. They could be,

• Secret and protected as a trade secret; or
• Published and yet protected as a patent (as was the gif format for images).

This is not true for open formats. They are,

1. Documented and published - sufficient to implement them in any computer programme or device.
2. Made available irrevocably to everyone without any royalty or fee.
3. Maintained by a neutral body, where decisions are taken with consensus or majority thus catering to the needs of all.

Advantages of Open Format

Open formats, not only avoid monopoly but encourage healthy competition. Information technology has best flourished in the open formats/ standards: the Internet, the web, the protocol transfer are all based on open formats/ standards. Apart from other advantages,

• There is no fear of patents or licensing;
• Open source software supporting ODF exists for every operating system; they work across the operating systems. 
• The files can never be lost as they will always be accessible.
• They can be implemented in any software making the users true owners of their files.

THE TORTOISE AND THE HARE

Let me explain open source software and open format with the help of a story from 'Panchtantra': this story has common thread in all cultures - it is there in Aesop's fables too. It is the story of a hare and a tortoise.

One day, the hare and the tortoise decided to race against each other. The hare obviously took the lead; he thought of relaxing and went off to sleep. The tortoise, walking slowly but steadily, overtook the hare and won the race. The moral is,

'Slow but steady wins the race'.

In recent time, some new chapters have been added to this story.

The hare was perturbed by the defeat. He asked the tortoise to race again. This time he did not take rest and won the race easily. The moral is,

'It is better to be fast and reliable'.

But, this is not the end of the story.

After some days, the tortoise asked the hare to race once again but with a condition that the course will be chosen by him. The hare, who was confident of his victory, gave him a free hand. This time the course included a river. The hare ran up to the river and then stopped. The tortoise came and swam across the river to win the race. The moral is,

'Every one has weak and strong points – play on your strong side.'

However, the story still does not end here.

After some days, the tortoise and the hare repeated the race over the same course but the rules were changed. This time they decided run it as a team. On the ground, the hare carried the tortoise on his back and on the river, the tortoise carried the hare on his back. The result was that both of them reached the destination quickly, saved time and enjoyed the race too. The moral is,

'It is best to consolidate everyone's strong points'.

 OPEN STANDARDS, FORMATS – GOOD MEANS

This is, what the open source and open formats are about. They,

• Consolidate strong points;
• Use the IPR to prevent the hoarding of technology;
• Invite others to participate in its development.

It is 'Make love, not war' in atypical way. In term of Gandhi's philosophy, they are right means and are the key to the future: they will lead us to the desired end.

Mahatma Gandhi once said,

 'You must be the change that you want to see in the world.'

Lead by example: show the world how changes can be effected. This is, why we use and advocate Open Source Software and Open Formats.

The first and last image - from Wikipedia

Appendix-1

Popular OSS programmes that work across all Operating Sytems/ platforms:

1. Audacity (GPL version 2): It is programme for recording audio files. It permits editing of the audio files too. One can copy, paste, or mix the audio files.
2. OpenOffice.org suite (LGPL License): It provides bundle of software that are used in an office. It is similar to MS office suite and contains similar programmes. The default format of different programmes of this suite are Open Document Format maintained by Organisation for the Advancement of Structured information Standards (OASIS). It was approved by the International Standardisation Organisation (ISO) on May 3, 2006. OpenOffice.org suite can open and save files in default format of MS Office suite or Power Point Presentation as well as in any other format too. It can export any file into pdf format. In the latest version pdf files can also be modified. MS word does not open files saved in default format, which is open format, of OpenOffice.org. This can be easily achieved by Sun ODF Plugin, a freeware from Sun Michrosystems.
3. Firefox, Thunderbird, and Sunbird (all from Mozilla Foundation) (Mozilla Public License): Firefox is a web browser: Window equivalent to Internet Explorer. Thundrbird is a program for sending and receiving emails. It can perform functions of Outlook express. Mozilla Sunbird is e-manager and manages e-calender. It is similar to Microsoft outlook and can be integrated with Firefox or Thunderbird. 
4. GIMP (GPL License): It is GNU Image Manipulation Programme and is suitable for such tasks as photo retouching, image composition and image authoring. It is similar to photoshop. 
5. Infra Recorder (GPL-2 License): It is programme for burning CDs and DVDs. It works in the windows only. However, K3B is a similar programme that works in linux. 
6. VLC Media Player (GPL-2 License): It is media player. It can play audio and video files. Mplayer is another open source programme similar to it. It can play files of mp3 format (a proprietary format) as well as ogg format which is open format.