Addressing a number of threads:
John Lederer recently noted that the Mandrake distro of Linux (which apparently enhances Red Hat's version -the one I have been using), might not have been possible if the original code was copyrighted. He also cited Eben Moglen's intellectual opus on the hoped-for death of copyright resulting from use of open source software. And a number of posters have argued that copyright law suppresses (or at least delays) creativity, particularly by chilling extension of pre-existing works still under copyright.
The summary of my discussion below is that copyright law does not significantly impact (restrict) software development, and to the extent it does, the positive control-benefit derived from granting a copyright to the author far outweighs any harm caused by chilling others from using literal copies of code to extend the art. The real threat is patent law, a much bigger bear in the woods IMO.
I'll start this by noting that historically copyright law has rarely protected copying software interface or command structure elements. Cases such as the PACMAN case, Ashton Tate, Borland, the Microsoft/Apple debacle and their progeny demonstrate that because of idea-expression or process-expression merger, a programmer that sets out to duplicate the look and feel of another software program is unlikely to violate the protectable expression in the interface or command structure. Likewise, copyright law has not generally been successfully used to prevent inter operability or conversion/translation of data formats.
The author of QDOS (quick and dirty operating system) -- Tim Patterson -- used the ideas in Digital Research CP/M -- itself a watered down version and derivative of some of the Unix command and I/O structure. Why? Mostly because Unix was so prevalent at the time that to have third party development and support, it was easier to design something that functioned similarly to known main frame structure (there were probably a lot of technical reasons as well)
QDOS became MS-DOS, which was then copied on a functional level by Digital Research/Novell/Caldera in DR-DOS:
(from paragraph 38 of Caldera's Amended Complaint Against Microsoft):
"DRI designed DR DOS to be the functional equivalent of MS-DOS, i.e.,
to support the same API set. DRI was readily able to accomplish this,
largely because of its experience in the development of CP/M, from
which QDOS and MS-DOS derived." [see
http://www.calderathin.com/lawsuit/amendment.html]
Copyright law did not prevent DRI's development of a competing O/S. Nor did it prevent inter operability, hierarchical command structure copying, or interface similarities.
While these developments were taking place in the PC industry, Unix
was splintering into a number of derivatives in the mainframe -
network environment. See
http://www.ehlis.com/adam/solaris/history.html (contains a fascinating
chart showing the development). In many cases the splinters were
copies or derivatives under the open license ATT was forced to issue
under orders that prevented it from selling (licensing for a fee)
software.
The Berkeley Software Distribution (BSD version) of Unix eventually sprouted the OpenBSD version which is now open source. However, Linux developed separately and independently, again however, expressly copying the structure, command and functionality of much of what is Unix. Linux was not hindered in the least by copyright law. Linus Torvalds and his friends copied ideas and non-protectable expression. He essentially reverse engineered UNIX for the Intel386 (or now x86) processor - a practice long regarded as not violating the copyright of the original software owner (as long as the copy was legally obtained). And, while the DMCA and some whacky cases have somewhat restricted this reverse engineering right (typically, however, in cases where there is a larger contractual relationship), copyright law has NOT prevented (indeed, not even hindered):
Copyright law has likewise not prevented or impaired development of 'clones' of many popular games (pac man, space invaders), though I admit that newer computer games that feature 'characters' and plots are more likely protectable, at least in those elements.
More importantly, however, copyright law has given open source developers *control* over rights to use their source code. Specifically, copyright law has permitted them to _claim ownership in the code_ and then to grant a _license_ to permit others to use the code but only certain conditions (predominantly, that all modifications be made publicly available in source, and no further restriction on a second user from making changes to the sources). See <http://www.gnu.org/copyleft/gpl.html>.
In short, I see no evidence that copyright has hindered in any respect, the open source system of program development. Indeed, *because* of copyright, the movers behind the open source system have prevented other companies like Microsoft from acquiring sources as a free rider, closing development and making it proprietary, and then using their marketing might to quash competition.
Finally, I continue to be surprised by the view of some people that if someone writes a software program, they should be *required* to donate it to the public. Copyright recognizes that the right to use the fruit of the author's creative output is in his or her control (at least where compulsory secondary licensing rules do not apply). Some authors choose a closed proprietary system. Some authors choose an open free-development system. Copyright law gives them this choice, it does not compel either of them (though the default rule is prevention of copying).
I am just looking for people who criticize copyright law to be more precise about exactly what they are criticizing. I have always thought of copyright as rather limited in its scope, because to show infringement you must prove literal copying or access and substantial similarity, and because copyright is limited by idea-expression merger and process-expression-merger.
Contrast that with patent law. Patent law relating to utility patents expressly only protects novel, utilitarian, and non-obvious inventions. A patent can be infringed regardless of access, or copying. And at least in the U.S., there is no requirement to cite if not known (or even really investigate) non-patent prior art. Thus, having read at least 50 or so 'software' patents, and having been involved in a large software patent infringement case, I see the software patent as the main threat to open source development. Many of these patents seem outrageous on their face, because they build in an obvious or non-novel way, on the programming tricks used by hard core programmers since the 50's, 60's and 70's. Some are indeed novel, and deserve protection. But you are in a whole different ball game getting a C&D on a patent, than when you get one on a copyright claim. The sheer discovery burden of proving one of these patents invalid costs hundreds of thousands, if not millions of dollars. If the FTC had not sued Microsoft for antitrust violations, I'm betting that by now, Microsoft would have already sued some of the large Linux distro providers on some patent they hold in their arsenal. If not to achieve victory, at least to cause great financial pain. I thank my lucky stars every day that the FTC finally did something (even if I think this browser war integration thing is not the real case against Microsoft).
if you got this far, thankx for listening . . .
best regards, mike oliver
Bowie & Jensen, LLC
<mikeoliver[_at_]home.com>
<references>
The history of the computer is fascinating. I offer a few links here:
http://www.icom.org/vlmp/computing.html
(virtual museum of computing)
http://www.physplt.wsu.edu/pub/people/BremnerFiles/MicroHistoryTOC.html
(radio interview series)
http://www.users.csbsju.edu/~jgramke/Help/unix/unix/data/history.html
(unix history)
</references>
Received on Sat Aug 21 1999 - 18:16:10 GMT
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