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.. Home .. Certifications .. Linux Unix .. Columns ..Column Story Monday, August 04, 2003

 Notes from Underground   James Ervin
James Ervin



 Closing Up Open Source
Decades-old copyright and patent law and current, pending court battles could push open source development to its knees.
by James Ervin  
1/15/2003 -- Opensource.org released the seventh "Halloween Document," the latest in a series of leaked internal Microsoft memos, on Nov. 5, 2002. Summarizing the results of a survey conducted by the "Attitudes Towards Shared Source and Open Source Research Project," it showed that business arguments in favor of Open Source software, such as reduced total cost of ownership, were successful, at least among the survey sample -- a cross-section of computing industry elites. Ideological arguments about why open-source software might be better or even necessary, on the other hand, fell flat.

Two days later, the Supreme Court posted the full transcript of Lawrence Lessig's closing argument before the Supreme Court in Eldred vs. Ashcroft. Lessig and the other plaintiffs argue that the Congressional power of determining copyright terms does not imply the power to continually grant extensions at the end of each term -- as has been done 11 times, most significantly in 1831, 1909, 1976 and 1998. The 1998 extension, known as the Sonny Bono Copyright Term Extension Act, "extended the term of subsisting and future copyrights by twenty years," according to Lessig's closing argument. Many viewed the act as a capitulation to special interests such as Disney, who stood to lose the copyright on certain properties, including the original Mickey Mouse cartoon Steamboat Willie, in 2003. Interestingly, Intel Corporation expressed partial support for the plaintiff's position in a brief of amicus curiae. Expectedly, content providers including AOL-Time Warner, the Motion Picture Association of America, and Recording Industry Association of America -- major copyright holders all -- filed briefs in opposition.

The Internet bubble having just burst, these events are portentous for Unix/Linux, computing in general and perhaps free speech to boot.

Patent and Copyright
Anyone who has run even an innocent search on a peer-to-peer network should find it difficult to argue with the death of copyright, in fact if not in principle. Post-Napster the situation is worse than ever before from the perspective of the RIAA and other interested groups. Newer peer-to-peer networks and broadband connections make entire television seasons available for the taking and are gradually eliminating the centralized control that provided Napster's foes with a legal target. Although only 1-percent or less of all recorded information is available in digital form, it's the 10 most profitable percent.

United States copyrights protect the creative work of an author for the author's lifetime plus 70 years, according to the law currently under contention in Eldred vs. Ashcroft. Lessig and other plaintiffs argue that Congress's repeated copyright extensions stifle creativity and injure the public domain. The defendants argue that benefits continue to accrue beyond the length of any particular copyright term (to the authors' heirs or beneficiaries, if not to the authors themselves). The thriving emulation and "abandonware" scenes, which unearth software for obsolete computer systems such as the Commodore 64 and make it run on modern hardware, grant some credibility to the defense's position-but these are not mentioned in the defense's brief, perhaps out of fear that to do so might legitimize these gray markets. According to Lessig, the justices expressed sympathy for the argument that current copyright periods—the author's life plus 70 years—benefit no one but the corporations that retain the majority of copyrights.

Patents, on the other hand, protect the inventor of a process for a period of time, typically 17 years, so that research and development costs can be recouped. Intuitively, the distinction between patent and copyright is one of utility. Patents are applied to "the useful arts," typically processes or devices that perform a function, while copyright is granted to any and all "writings." Software challenges this definition: algorithms are clearly functional, but resemble written text, to which we customarily grant copyright status. Consequently, software is granted copyright and patent protection, depending on the situation.

To the Victor, the Spoils
Patents are frequently granted to the processes and algorithms underlying software, but rarely to the shrink-wrapped product. Conversely, the "look and feel" of software is frequently copyrighted, and attempts at mimicry stifled. Apple protects its copyrights vigorously, going so far as to threaten legal action against enthusiast Web sites such as macthemes.org, which hosted alternative "themes" for the Macintosh user interface. Mac OS X, the company's latest operating system, boasts a more stable BSD-based Unix core but severely limits the ability to tweak and modify the interface -- a departure from the user-friendly customizability that won it so many devoted Mac users in the first place. It's tempting to draw an inverse correlation between the rabidity with which a firm pursues alleged copyright violation and their ability to innovate, but the truth is, inevitably, more complex. Copyright pertains only to the wholesale copying of a work and is difficult to defend. This allows software such as LindowsOS, a Debian-derived Linux distribution with a desktop interface that strongly resembles Microsoft Windows, to continue to exist.

Software patents, though, provide more protection and are more lucrative over the long term than copyrights. While sales of a copyrighted program taper off after a few years, thanks to Moore's law and the infinite human capacity for boredom, a patented process has a longer effective lifespan, and a well-placed software patent can have widespread applicability. For example, Unisys will collect royalties on its patented LZW compression algorithm, used to compress nearly all GIF images, until 2003. Patents do not stifle all innovation -- for instance, the competing, patent-free PNG image compression standard was developed primarily as a royalty-free alternative to GIF images -- but it is difficult to deny their detrimental effect. Legal fees for failure to license an obscurely patented process can cripple a small software producer, especially when the patented process is trivial or necessary, such as the (now defunct) patent on hyperlinks held by British Telecommunications. In such cases, widespread civil disobedience typically ensues, as occurred with the GIF patent.

The situation faced by content providers in Eldred v. Ashcroft presages a battle to come, which is already being shifted out of public view, among software and hardware providers. A few organizations -- the RIAA, MPAA, and other organizations sympathetic to the defense—hold the majority of commercially viable copyrights. Similarly, several major corporations hold the majority of software patents. According to the League for Programming Freedom, IBM alone held 12 percent of software patents in 1993. Key software companies such as Microsoft barely rated on the scale then, prompting a bemused reaction:

In what may be judged as either ironic or deeply disturbing, most software patents are held by companies that history has proven, and those within the computing industry judge, to be totally incapable of delivering innovative software products to market.

—from Software Patents: An Industry At Risk

Patents are golden geese of the post-dotcom era. Eldred v. Ashcroft doesn't promise a bright future for companies that rely on copyright for income—nor does the public's massive refusal to comply with copyright law. Attempts to charge for software on a per-use basis similar to cellular phones, as Microsoft attempted with Windows XP, have been met with indignation from business and public alike. Recognizing this, software firms are scrambling to accumulate as many patents as possible.

Intel's partial support for the plaintiff's case in Eldred v. Ashcroft is explicable if we note that Intel holds very few software patents by comparison to juggernauts such as IBM (by implication, probably equally few software copyrights as well). Processor design is characterized by the increasing migration of functions from software to hardware. Future Intel processors will be expected to incorporate more and more advanced instructions, each a possible patent violation. As recently as October, Intel lost a lawsuit for the illegal use of parallel-instruction computing technology patented by Intergraph. Anything that reduces the ability of other firms to accumulate software copyrights or patents is, in Intel's eyes, probably a good thing.

The Innovation Stops Here
It may be amusing to watch copyright and patent holders and non-holders pitted against one another, gladiator-style, but the public will be the only loser. If true, the indifference to philosophical arguments in favor of Open Source and intellectual freedom reported in the latest Halloween document is especially alarming. Open Source software projects, by nature, don't tend to accumulate patents. Microsoft's internal memo and "shared source" program may indicate a serious loophole in the Open Source philosophy: It doesn't matter if patented software is open or not. Even frivolous or vague patents can quell the development of competing implementations. Focusing on cost-benefit analysis, but failing to communicate the Open Source (or more properly, Free Software) philosophy effectively, is simply playing the opposition's game. It may be too late in the day to expect the reiteration to do any good, but:

I hope we shall crush in its birth the aristocracy of our moneyed corporations.
— Thomas Jefferson, 1816.

If you want to read more background on this topic, I strongly recommend an article by Gregory J. Kirsh "Patents vs. Copyrights."


James Ervin is alone among his coworkers in enjoying Michelangelo Antonioni films, but in his more lucid moments suspects that they're not entirely wrong.

 

More articles by James Ervin:

Post your comment below, or better yet, go to our Discussion Forums and really post your mind.
Current CertCities.com user Comments for "Closing Up Open Source"
1/16/03 - Tharg  says: "Anyone who has run even an innocent search on a peer-to-peer network should find it difficult to argue with the death of copyright, in fact if not in principle." This is piracy not the death of copyright. Trading some Disney videos on Kazaa is a far cry from freely adopting Mickey Mouse in your companies next marketing campaign!
2/26/03 - TrT  from Northern Indiana says: In the current state of the law, there is absolutely no difference between trading Disney videos and adopting Mickey. It may be a more glaring violation but both are a violation. I am on the fence; Artist need to be supported i.e. you should pay to hear/watch their work. The artists, the corporations and us have not yet figured out how to deal with the new delivery/distribution system that is the internet. If you think that you should get Disney videos for free just because you can, think of the reason for the internet bubble in the first place. Most 'e' companies were giving away content in the hopes to figure out how to make money later. It didn't work. The death of copyright is not necessarily a good thing. BTW, I use GNU/linux and am studying the open source model. Right now it works because many very talented people are willing to work for free. There are successful companies selling services around this model. I think it will be very interesting to see how it plays out in the next couple years. Free as in freedom is the way to go. Free as in beer is not sustainable.
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