[Commons-law] Moot Court problem

[sudhir krishnaswamy]

The Raj Anand Moot Court Competition is an annual moot court competition 
organized by Anand & Anand, India's premier IP law firm. This years problem 
[which follows this note] is centred around the enforcement of an Open 
Source License. Given that there have been no cases around the enforcement 
of Open Source licenses in the Indian courts this problem will raise 
interesting arguments.

Moreover, this problem has introduced the idea of Open Source to a lot of 
young law students and those of you in Delhi this August should get across 
to watch the Oral Arguments

The Problem - 2002

A company, Zatents Ltd. ('Zatents'), based in New Delhi, developed a 
computer software program called 'Quick Search'. The specifications of the 
program are annexed hereto as Annexure 'A'.

The Software allows lawyers to quickly search for a case or cases from a 
database, which is partly built in and can be updated using the lawyers' 
personal notes of cases. It is usual for lawyers to make short notes of 
cases in diaries or registers, but over the years they would often loose 
these records. Quick Search enables the lawyers to collect the cases at one 
place, as also to retrieve them rapidly by keying in 'catch words'. In fact, 
by using the catch words/ phrases, one could cull out the entire proposition 
and/or the citations of the cases, where they appeared. Quick Search is 
different from the advanced programs or databases available in the market in 
that it is far simpler to use. It was in evidence that most lawyers are 
generally technologically shy and stay away from complex programs with 
advanced features. In this sense, Quick Search is simple looking, easy to 
use and very quick.

Zatents decided that it would not charge any fee for the software. Instead, 
the software was licensed to users in return for their obligation to 
similarly make their additions (both to the case database as well as to the 
underlying software) available to members of the public. In this sense, 
Zatents intended this to be an 'open source' kind of model.

The software license, which is annexed as Annexure B and which is visible 
when a person loads the Quick Search CD on his computer, states that users 
are allowed to use Quick Search along with its data, provided that any 
additions or alterations made to the software/ database shall be transferred 
back to the Company in electronic form via its email: 
quicksearch at zatents.com. However, users who provided enhanced features or 
data could not compel Zatents to incorporate them in future additions to 
Quick Search. The whole objective of the exercise was to keep Quick Search 
simple.

When the Quick Search program was distributed, it became an instant success 
among various types of lawyers. Travelling lawyers found it very useful to 
carry a CD-ROM which was like a useful diary of their cases in their areas 
of interest.

A company by the name of Natwar Ltd. ('Natwar') headquartered in New York 
and with offices in India obtained a copy of Quick Search and noticed that 
it could not be used on a network. It had to be used on a stand-alone 
computer; therefore only one person could use it on one computer, at one 
time.

Natwar decided to modify the program so as to enable it to work on a 
network. Natwar however retained the simplicity aspect of Quick Search 
namely the thought that lawyers did not wish to necessarily search huge text 
of cases, but, were mostly satisfied by an Index type program on the basis 
of catch words, phrases or propositions. Natwar also corrected mistakes and 
filled up blanks in the data. Natwar also made Quick Search web enabled so 
that users wanting to access the same had to log on to a website in order to 
use the database. This was conceived as a new portal based on a subscription 
model and the website was hosted from Australia.

Natwar released its program titled 'Bite a Cite'. Natwar did not consider it 
necessary to transfer its program to Zatents. It did not even consider it 
necessary to acknowledge Zatents's contribution to the software. Zatents 
objected to Natwar on the grounds that although 'Bite-a-cite' was built 
using Quick Search, Natwar did not transfer the alterations made to the 
program to Zatents and that it was now commercialising it, as opposed to 
giving it to users for free, something that according to Zatents goes 
against the very basis of an open source model.

Company Zalzala Ltd. ('Zalzala'), a trading partner of Natwar, located in 
Mumbai, made about 1000 copies of Quick Search and sold it as 'Quikase'. In 
order to increase sales, Zalzala advertised their product through a national 
publication.

Zatents objects to Quikase on grounds similar to that in respect of Natwar. 
Further Zatents also contends that 'Quikase' is deceptively similar to their 
trademark 'Quick Search' and therefore amounts to passing off.

Natwar defended its position by arguing inter alia, that Zatents's license 
is invalid.

Zalzala takes the plea that Quick Search is a descriptive mark. Further it 
also takes the plea that since no additions were made, it was not obliged to 
honour the terms of the license by making it available for free.

Zatents has filed a suit against Natwar and Zalzala in the Delhi High Court. 
The Plaintiff has two counsels-one against Natwar and one against Zalzala, 
while Natwar and Zalzala are separately represented by Counsel.

'Zatents, Quick Search, Natwar, Bite-a-cite, Zalzala and Quikase are words 
coined by the organisers of the 5th Raj Anand Intellectual Property Moot 
Court Competition 2002 and are the property of Vidya Intellectual Property 
Foundation.'

© Vidya Intellectual Property Foundation 2002

Annexure 'A'

PROGRAM SPECIFICATIONS

1. Name of the Program  Quick Search
2. Computer language in which the program is written Front end: Visual Basic 
6.0
Backend Database: MS Access 97
3.  Size of the program 14,000 Lines (approx.)
4. Hardware specifications required to run the program Pentium III, 800 MHz
10 GB Hard Disk, 64 MB RAM
5. Software requirements to run the programe Windows 9x/ NT 4.0 or Higher
ODBC Driver for MS Access 97
6. Time taken to develop the program ' man hours  About 65 Man Hours
7. Time taken to feed data About 500 Man Hours


© Vidya Intellectual Property Foundation 2002

Annexure 'B'

QUICK SEARCH OPEN SOURCE LICENSE

Preamble

QUICK SEARCH is a CD-ROM that contains a database of propositions from 
judgements from the year 1950 to 2000.

The Quick Search Open Source License (the 'License') accompanies every 
package of QUICK SEARCH Open Source software that is available to You free 
of cost. [Open Source software is one that is freely distributed along with 
the Source Code, which can be modified and redistributed by anyone].

The Licensed Product is our copyrighted work and through the means of the 
License, the Licensor gives You legal permission to use, modify, reproduce, 
sub-license and distribute the Licensed Product. You may make Modifications 
to the Licensed Product, and/or create Derivative Works from it as long as 
the said actions are in consonance with the terms of the License and all 
Modifications made by You are available to others, including the author of 
the Licensed Product free of cost.

However, it must be understood that there is no warranty for the Licensed 
Product. If the Licensed Product is modified by someone else and passed on, 
the Licensor wants its recipients to know that what they have is not the 
original, so that any problems introduced by others will not reflect on the 
original authors' reputations. Further, the Licensor does not accept any 
liability in the event of the software not working properly or causing any 
injury or damage to You.

S. 1 Definitions
'Contributor' Each person or entity who creates or contributes to the 
creation of a modification and distributes the same.
'Derivative Works' A work based upon one or more pre-existing works 
consisting of editorial revisions, additions, annotations, elaborations, or 
other Modifications to the pre-existing data or any software that 
enhances/alters the functionality of the Licensed Product by modifying the 
Source Code of the interface software provided and which, as a whole, 
represent an original work of authorship.
'Licensed Product' A CD-Rom media containing a database of propositions of 
judgements from the year 1950 to 2000 and a user interface to search the 
said database along with the Source Code of the software driving the 
interface.
'Licensor' Zatents Ltd., situated at B-41, Nizamuddin, New Delhi ' 1100 13.
'Modifications' Any additions or other alterations to the data or structure 
(including changes made to the user-interface software) of (i) the Licensed 
Product, or (ii) a new file that contains any part of the Licensed Product 
and/or previous Modifications.
'Source Code' A set of instructions in a user-friendly language that are 
given to the computer to perform the specified task.
'You' (or 'Your') An individual or legal entity exercising rights under, and 
complying with all of the terms of, this license.


S.2 Terms and conditions for copying, distribution and modification


The Licensor hereby grants You world-wide, royalty-free, non-exclusive 
license, subject to third party intellectual property claims, to:
Use, reproduce, modify, display, sub-license and distribute the Licensed 
Product (or portions thereof), with or without Modifications, in both Source 
Code or as an executable program; and
Create Derivative Works of the Licensed Product by adding to or altering its 
substance or structure (or both).
S. 3 Intellectual Property rights subsisting in the Licensed Product

Nothing in the License shall be deemed to grant any rights to copyrights, 
trademarks, patents, trade secrets or any other intellectual property rights 
of the Licensor or any Contributor except that which is clearly stated 
herein. No patent may be sought for a combination of the Licensed Product 
with other software or hardware. No right is granted as to the trademarks of 
the Licensor or any other Contributor even if the same is included in the 
Licensed Product. Each Contributor shall be deemed to hold the copyright in 
the Modifications s/he creates and the said Modifications shall be 
automatically sub-licensed to the Licensor under the terms of this License.

S. 4 Your obligations regarding the distribution of the Licensed Product


As an express condition for Your use of the Licensed Product, You hereby 
agree that:
Any Modifications that You create or to which You contribute, and which You 
distribute, are governed by the terms of the License and can be distributed 
only under the terms of the License. You must include a copy of the License 
with every copy of the Modifications You distribute;
No terms will be imposed on the Source Code or executable version of the 
Licensed Product or Modifications that alter or restrict the scope of the 
recipient's rights under the License;
All Modifications to the Licensed Product shall be sub-licensed to the 
Licensor under the same terms and conditions as the License; and
You will not make any profit out of the Licensed Product or Modifications 
thereto.
S. 5 Availability of Source Code

You must make available, under the terms of the License, the Source Code of 
the Licensed Product and any modifications that You distribute, on the same 
media as You distribute the executable form of the Licensed Product.

S. 6 Description of Modifications

You must cause any Modification that You create or to which You contribute, 
and which You distribute, to contain a file documenting the additions or 
other changes You made to create or contribute to those Modifications.

S.7 Termination clause


If You assert any intellectual property rights claims against the Licensor 
relating to the Licensed Product, or if You breach any terms of the License, 
Your rights to the Licensed Product under the License shall automatically 
terminate.
Effect of Termination: Upon termination, You agree to immediately stop any 
further use, reproduction, modification, sub-licensing and distribution of 
the Licensed Product and to destroy all copies of the Licensed Product that 
are in Your possession or control. All sub-licenses to the Licensed Product 
that have been properly granted prior to termination shall survive any 
termination of the License.
S.8 Warranty

The software is provided "as is", without warranty of any kind, express or 
implied, including but not limited to the warranties of merchantability, 
fitness for a particular purpose and non-infringement. If the Licensed 
Product is modified by someone else and passed on, the Licensor wants its 
recipients to know that what they have is not the original, so that any 
problems introduced by others will not reflect on the original authors' 
reputations. In no event shall the Licensor be liable for any claim, damages 
or other liability, whether in an action of contract, tort or otherwise, 
arising from, out of or in connection with the Licensed Product or the use 
or other dealings in the Licensed Product. Further, in no event shall the 
Licensor be liable for any special, incidental, indirect, or consequential 
damages whatsoever (including, without limitation, damages for loss of 
business profits, business interruption, loss of business information, or 
any other pecuniary loss) arising out of the use of or inability to use the 
Licensed Product.

S.9 Disclaimer

The database of propositions of judgments as well as the short notes 
accompanying the cases on the Licensed Product is only meant to provide a 
quick reference guide to decisions delivered in the field of intellectual 
property law. This is neither complete nor comprehensive but only a helpful 
tool the utility of which depends upon the users own contribution of case 
notes. The contents of the database or any Modifications made thereto do not 
constitute legal advice of any kind.

S.10 Acceptance

By clicking on the I Agree button below, You affirm that You agree to be 
bound by the terms of the License and that You will abide by and adhere to 
the duties and obligations contained in it. Your electronic acceptance shall 
operate as a valid and binding contract for the purpose of all applicable 
laws in this regard.

© Vidya Intellectual Property Foundation 2002




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