Re: [h2o-discuss] more edges to IPR

[Eric Eldred <eldred@mediaone.net>]

j proctor wrote:
> 
> > So here is my own speculative, imaginative case:
> [...]
> > When sued for copyright infringement, the guv replies
> > that she has not seized the copyright, only the source
> > code (citing Zapruder)--the company is still free to
> > sell the software and prevent others from selling it.
> 
> By releasing the source code, however, she has undermined Microsoft's
> ability to sell the product that code represents (as well as related
> products, since Win98 and Win2k likely rely on much of the same code as
> the hypothetical Win2k+1), thus severly hindering their business.
> Charging for technical support isn't making them MS friends already;
> that's not likely to change any time soon.
> 
> > The state had a valid purpose in seizing the source
> > code because of the state of emergency and the state's
> > requirement to protect the public interest, she states.
> 
> However, the state could have been ordered to require NDAs for anyone that
> wants to volunteer to work on it.  In fact, Microsoft's legal team would
> probably have the paperwork filed and on track for approval before the
> state police finished loading the disks in their evidence van.

I think your argument is good that the source code to
Windows 2001 would be considered by Microsoft as a trade secret.
This is a form of intellectual property I didn't consider.

But then isn't there a contradiction between considering it
a trade secret, and trying to promote the progress of science
and the useful arts by encouraging free publication of the
work, and thus in return giving exclusive copyright?

For example, could something be patented and a trade
secret at the same time?  Doesn't the patent require
publication, and shouldn't copyright?  Consider the
history of books and music:  for most of our history,
copyright of each has required publication, registration,
and deposit of copies with the Library of Congress.
Could a book publisher attach a EULA to the book
requiring a NDA before anyone could read it?

Further, I am not sure why publication of the source code
ought to be considered a greater copyright infringement
than publishing of the object code--you state that Microsoft
would consider that to infringe on their ability to do
continuing business.  But in the case of a copyrighted
book or piece of music it would not, would it?  Why
should not the Copyright Office simply set up an
administrative requirement that all digital media and
object code be accompanied by the complete source code,
not just the first and last pages?  In that case, they
can still exercise all their exclusive rights to
copyright, including preventing anyone else from
publishing or selling it, within the copyright term.

There is a good reason for requiring deposit of the
source code:  the work needs to return to the public
domain when the term expires.  How can it do that if
only the object code is published?  What if the
corporation holding the copyright goes out of business
and customers can no longer get in touch with the
copyright holder, even if they wanted to buy the
source code?

So I am back to puzzlement why the source code and object
code should be treated differently under copyright law,
and why the copyright and the artifact could not be
separated legally, as in the Zapruder case.  I have
tried to lay out a scenario where the separation might
indeed be required for the survival of the public interest.

For more on the new patent law under consideration, which
does in fact allow nonpublication of patents if and only
if they apply in the United States, see:

http://www.mercurycenter.com/svtech/news/breaking/merc/docs/invent080599.htm


> Information (in this case, the underlying source code for an OS) that MS
> chose to withhold, as was their right at the time they made that decision,
> ended up costing millions of dollars and several human lives.

This is not purely academic!  The U.S. Navy is adopting Windows NT,
and you may have read of one of their ships that lost all power
because of a "feature" in the software.  I am sure we all will face
increasing risk of catastrophe from software that has become so
complex that it is beyond the comprehension of a person or even
Microsoft.  It would be sad if the laws we adopt only encourage
such a bad event.

We can go on and on here, including allegations that the software
ought to be principal evidence in a case of massive fraud, but
I'll just stop here.  BTW, I'm not a lawyer either, so Microsoft
or you should not depend on me for legal advice!





> 
> To get the warrant to sieze the code, the Governor presumably had to
> convince a court to overlook the omnipresent disclaimer in the EULA,
> recently strengthened by the WA state legislature's overwhelming support
> of UCITA (hey, if you can make up the situation, I can make up details;
> anyone actually know how the WA delegation voted?), and the fact that the
> OS division apparently escaped the DoJ and FTC problems of the late 90's
> relatively unscathed.  Assuming she could do so (she *does* get to appoint
> the judges, and the WA Attorney General was one of the first on record
> opposing it), the next issue is whether she violated the copyright and/or
> patent by making a reproduction of it publicly available.
> 
> In this case, I think so.  Given an ignored EULA, the state would have a
> reasonable case that the contract assumed the software would not be
> grossly defective, and could likely get significant damages after a
> decades-long legal battle of appeals and counter-appeals.  In that kind of
> scenario, she wouldn't be in trouble because she took a copy.  However,
> instead of simply demanding that the state be released from the contract
> and compensated for its trouble, she make free and public something that
> could be regarded as a trade secret.  Obviously, I don't know Washington's
> laws, but Florida defines that term and the abuse of it fairly explicitly.
> 
> definition of trade secret (FS 812.081):
> http://www.leg.state.fl.us/citizen/documents/statues/1998/ch0815/SEC081__.HTM
> 
> computer-related crimes (FS 815):
> http://www.leg.state.fl.us/citizen/documents/statues/1998/ch0815/titl0815.htm
> 
> I know FS 815 because I got a copy every semester I attended a state
> university and every year I worked for the state.  Sure, it wouldn't
> surprise me if there's some limitation about these laws not actually
> applying to the state government itself under some due process
> circumstance, but I don't know that for sure either way, and am not
> familiar with the case that says their sovereignty exempts them from
> patent laws.
> 
> So, were it my call, and given that Washington's laws are likely similar
> to those bits of Florida law I do know, I'd say that the new governor did
> violate Microsoft's rights.  In judgement, however, I'd likely break the
> contract anyway, and establish some obscenely high financial penalties for
> both parties (Microsoft's negligence, and the guv's trade secret
> violation) that cancelled each other out.  I would not exclude MS from
> being subject to criminal and civil suit by the families or estates of the
> injured, but I would likely try to protect the state from similar legal
> action, since they acted in good faith.  I'd encourage the state to get
> its open source help applied to existing open source products.
> 
> And I'd encourage Microsoft to prove conclusively that their business had
> actually been damaged by someone's clean-up efforts on their code, and to
> collect exactly their cut of the current retail price of Windows 2001
> (plus reasonable legal fees, of course) from everyone who distributed a
> patched copy for each consumer who will say under oath that he chose it
> not because it worked better but solely because of the price, and on the
> further condition that Microsoft pay royalties to anyone whose bug-fixes
> they used to make later versions.  Microsoft will argue that the
> programmers released the code freely, so it's theirs if they want it; I
> say IP is a two way street.  By suing because it exists, and then using
> the modified code anyway (and you *know* they would), Microsoft would have
> forced itself, under its own ideas of IP, to incorporate illegal property
> into its own work unless it can make some consultant-type relationship
> with the modified sections' copyright holders.
> 
> So there.
> 
> j

-- 
"Eric"    Eric Eldred      Eldritch Press
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