“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an “unpublished work.”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.”