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Gregory Pomerantz: Four Shades of Software Sharing

May 04, 2001, 21:00 (3 Talkback[s])
(Other stories by Gregory Pomerantz)

"This paper has been written partially in response to recent ruminations by Microsoft about their new or newly emphasized source code sharing initiatives. I discuss four strategies for proprietary source code distribution, including a brief Unix history lesson, and a recommendation for legislative action."

"...One solution to the gated community problem is a return to the principles of copyright law. A book, film, or song is an expressive work. The economic value to the proprietor and the social value to the public of such a work lies precisely in that expression. Software is unique among copyrightable works in that its value is predominantly functional rather than expressive. In fact, software can be protected by copyright even when it is obfuscated and compiled to binary machine code. A work thus intentionally rendered incomprehensible (or nearly so) is nevertheless protectable under a statute that defines a computer program as a literary work (yes, this is the same statute that defines a "useful article" as a boat hull). It is secrets, not copyrights, that threaten the user community. Congress or the courts must resolve this question by holding that trade secrets cannot be applicable to source code or interoperability specifications with an extremely wide degree of distribution. Note that this change would have no effect on the current marketability of binary only software where the vendor retains the source code as an "unpublished work." It would only set a minimum standard: if you wish to educate the greater public and gain true benefits from that learning, you may not do so in such a way as to create a fiefdom."

"Copyright violations, source code or binary, are still illegal in the "digital millenium," and the vast majority of the public has proven to be more than willing to pay a reasonable price for good software. Some companies may well choose to voluntarily abandon the trade secrets, while retaining copyrights, on some of their programs. This is a step short of open source or free software. Under a pure copyright regime, the proprietor can control the number of users of the software, block derivative works, and block the distribution of full systems. In all likelyhood, copyright protection alone will prove insufficient to block the distribution of patches. Ideally, the software proprietor would grant rights to create and distribute derivative works to other licensees. Thus, this regime has the positive characteristics of a gated community, it maintains a proprietary software model with sufficient incentives to create, and it avoids the spectre of trade secret contaimination."

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