On 04/23/97, Mark Lemley <MLEMLEY[_at_]mail.law.utexas.edu> wrote:
>
<snip>
> Why haven't any potential Microsoft competitors reverse-engineered
> its operating system, copied the necessary functional components,
> and built a competing "Windows-compatible" operating system?
The people who make IBM's OS2 and SoftWindows for the Mac might disagree with the premise of your question. I think I read somewhere that the SoftWindows people took a license from Microsoft, though. I would guess IBM did too.
> Some possible reasons, and first-order responses:
>
> 1. Because copyright law would prevent it. [I'm not sure this is true.
> Reverse engineering for the purpose of ensuring compatibility is legal
> in many jurisdictions. Further, Lotus v. Borland suggests that in at
> least one circuit, elements necessary to the operation of Microsoft's
> OS would not be copyrightable at all. More to the point, you would
> expect someone to try it even if there was a little uncertainty about
> the law; witness the cloning of software in the 1980s].
Copyright law might very well prevent it. I think Lotus v. Borland and Sega v. Accolade are a far cry from what would be necessary to make a Windows-compatible operating system (particularly Windows 95 compatible, and then Windows 98 compatible). All that cloning from the 1980s seems to have disappeared after Lotus v. Paperback Software.
> 2. Because patent law would prevent it. [It may be that Microsoft
> now has a good fence of patents around its OS that would prevent
> compatibility, but I doubt it did 10 or even 5 years ago].
Microsoft may very well have patents relating to its OS, but I am not sure.
> 3. Because trade secret law would prevent it. [Microsoft claims that
> circulating 100 million copies of operating systems is not inconsistent
> with maintaining trade secrecy, but there is some reason to be dubious.
> Further, even if they are right, it is the source code which remains a
> trade secret, and reverse engineering a product to get at the trade secret
> is legal].
Reverse engineering is not legal if you agree in a contract that, in exchange for access to the materials, you will not reverse engineer them. No comment on the enforceability of that contract, which is an entirely different debate. Remember, though, that a jury returned a $13 million or so verdict against Stac on this issue. That probably has some deterrent effect.
> 4. Because it's hard. [Well, yeah, but the potential payoff is pretty
> big too].
I would guess it would be very hard, and very risky, and at the end of the day, you might, if you are lucky, have something with a market position like DR DOS used to have (does Novell even make that anymore?). You will probably never be 100% compatible, and if you ever get any significant market share, Microsoft will take notice and that could be a problem. Also, I don't think people really appreciate having to pay for an operating system. I think they tend to like the "free" operating system that comes with the computer. Sure, lots of people are buying Windows 95, and companies budget for operating systems, network software, etc., but how much of that business are you going to get with a not-quite-100%-compatible OS? And how many computer vendors are going to install your OS as the "free" one instead of Microsoft's?
There was an article in PC Magazine a few months back about what it takes to compete with Microsoft. It was just one industry writer's opinion, but it reviewed who had been successful (like Quicken) and who had not. The author's opinion was something to the effect that, if you take them on in one of their key broad directions, you will probably lose, but that if you take them on in a target area where you can be more innovative, you can win. I think the buyers of niche and other operating systems historically have not demanded Windows compatability, so that the investment would not have been worth it (then again, it might have made a big difference for Apple if Apple had it earlier).
All of that said, AMD and Cyrix keep at it in the chip market, so you would think someone would darn the torpedoes and try it anyway. Chip makers, however, have the protection of 17 USC Section 906.
Copyright 1997 by Brad Slutsky. This mail message is NOT legal advice. I do not purport to speak for my employer or any of its clients. I may not even be expressing my own views. Nothing in this mail message shall be construed as a solicitation of any kind or as binding on myself, my employer, or any of its clients. Include this disclaimer in any fair use of this mail message.
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