Re: Where we went astray-- Antitrust and Microsoft

Gabriel Wachob <gwachob[_at_]aimnet.com> wrote:
>
> This wouldn't work because much of the value of a piece of software is
> in the trade secrets it embodies.
>
> You simply are nuts to attempt to "reverse engineer" the internal
> components of an entire OS like Win95, so the only way you are going to
> reproduce the software (in an economically viable way) is to have a
> well-defined, relatively static API, or to have access to the source
> code.
>
> You do not need to give out your trade secrets in your OS to provide a
> complete description of your API (the interface to the internal
> operations of the OS) to outsiders. The problem is that Microsoft has
> apparently used information not published in its APIs when writing its
> own applications. They used trade secrets in their OS to benefit their
> application software, and this issue is whether this is
> anticompetitive...

Obviously a tying argument could be made here. However, how well has this been documented? Of course, one additional problem is that they can often get a jump on their competitors with their applications by having a lead on writing to new ultimately published OS features/APIs.

> Forcing MS to disclose their source code **would** solve this problem,
> but I think it would destroy the software industry since once you see
> how a person does something in software, unless they have that idea
> patented, its usually trivial to reproduce legally (that is produce with
> the same performance and functionality).

Well, I agree that it is doable, but trivial? I don't really think so. My view is that safely distinguishing between functionality, etc. and protected expression is nontrivial, especially when you have a large body of code being functionally copied. After all, you don't have to show in copyright infringement that the whole thing was copied.  

> Forcing the publication of internal source code would also be a disaster
> for any software publisher as it would encourage other folks to write
> software that relies on or uses internal hooks that are not designed for
> others to use. If you've written any significant amount of software,
> you'll know exactly what I'm talking about (program to an interface, not
> an implementation).

Of course, we get back here to the problem of Microsoft's undisclosed APIs, which may be a form of tying.  

> > (2) change the term of copyright for software
>
> I'm all for that. Copyright is intended to incentivize (and reward)
> authors for their work. Most software is of little economic value to
> the author after a few years. BUT, I'm really not sure that shortening
> the term would make a big economic impact for that reason. HOWEVER,
> This would help greatly the free software movement, which is more
> responsible for the success of the Web and the Net than any of the
> latecomers like Netscape or Microsoft.

I agree here. Indeed, my view is that the value of anything beyond a couple of years for Microsoft in its OS is not that valuable. You have a rapidly moving target, and even a couple of years lead is really all that is important.

-- 
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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1997 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org               
Austin, Texas                        bhayden[_at_]copatlaw.com