Open-Source Software and The Demise of Copyright.

Open-source software and the demise of copyright.
(221.) Twentieth Century music Corp. v. Aiken, 422 U.S. 151,156

(1975).
(1.) "Striking the correct balance among access [to an

author's work] along with incentives [for him to generate it] may be the central
problem in copyright law." William M. Landes & Richard A.
Posner, An Economic Analysis associated with Copyright Law, 18 J. LEGAL STUD. 325,
326 (1989). Compensating the particular author, however, just isn't copyright's
principal aim. As Nimmer states, "[t]he main purpose of
copyright can be not to incentive the author, but can be rather in order to secure `the
general advantages derived by the public in the labors of
authors.'" 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON
COPYRIGHT, [sections] 1.03[A] (2000).
(48.) Id.
2. Your price software will fetch in market is proportional for you to its
value as an economic tool.
(171.) Itoi, supra note 55.
On another hand, your "narrow" view, espoused in

Computer Associates along with defined by the "abstraction, filtration,
comparison" test,(228) is evenly conducive to the open-source
movement, even if it is actually conceptually inaccurate. Based on its

proponents, Pc Associates elevated the elements regarding prior programs
available with regard to use as foundations in future ones since it reined in
the "broad" protection afforded inside Whelan. the reduce in
scope regarding copyright protection allegedly increases both innovation and
efficiency since software program developers aren't instructed to re-invent the
wheel.(229) The Particular "narrow" view in which restricts copyright
protection for you to "a kernel, or perhaps feasible kernels, regarding creative
expression"(230) aligns itself with most the open-source movement
because it cuts down in the pockets associated with closed code about which usually hackers must
work. Open-source software, coupled with a "narrow" view of
copyright, allays any concern which copyright protection is
"blocking innovation in the software program arts."(231)
Microsoft's Windows may always be the most obvious illustration of your dangers
of broad copyright protection that the narrow camp loathes. Arguably,
Microsoft's Windows' copyright protection "blocks the
flow of information needed for innovation" and also chokes the
competition inside your PC market.(139) Microsoft exerts treatments for the
PC market since the outer boundary of intellectual territory within
its dominion expands by means of your advance of derivative works.(140) If,
however, Microsoft's applications had been afforded protection comparable to
that provided within Whelan, it's debatable regardless associated with whether there could be any
non-Microsoft innovation with all.
(175.) Fixing bugs is like "[giving] the particular individual a new kidney
transplant and the coronary heart suddenly fails; then allowing him a new coronary heart drug,
but that produces his lungs collapse. Anyone don't know why, and
you're screwed." FERGUSON, supra note 42, at 108.
(90.) Id. in 296. Wallace & Erickson, however, point out that
Microsofts operating system "became an market standard as much
from your momentum generated by the large good results of the PC as anything
Microsofts brash, competitive chairman did. Since the IBM PC gained in
popularity, much more and more programmers wrote computer software regarding that will
machine
and for the operating system.... "WALLACE & ERICKSON, supra
note 88, from 213. They also credit Microsofts success within achieving the
"industry standard" to its marriage with IBM: IBMs PCs used
Microsofts operating system, and also Microsofts enviable situation resulted
from the actual foothold it set up credited towards the proliferation regarding IBM PCs and
IBM clones in which began to become able to flood the marketplace throughout early 1983. Id. in
232-33.
(189.) Id.
(17.) NIMMER & NIMMER, supra note 1, [sections] 3.03[A], at

3-10.
(66.) "[T]he copyright grant and also its constellation of

exclusive rights, together with all the ability to license consumers and
others to talk about in the limited strategies by those rights, form the cornerstone of the
software industry as we know it today." Clapes et al., supra note
5, from 1501 (emphasis added). Indeed, a number of commentators get noted that
the existing system helps help to make the license itself a valuable commodity because
the copyright owner may allocate the particular distribution and employ involving his function to
a certain industry as well as customer. While Robert W. Gomulkiewicz, a new senior
corporate attorney with regard to Microsoft, factors out, "[t]he use of mass
market licenses enables the actual publisher to tailor an assortment involving rights
to specific kinds of uses, so that the particular license, instead of merely the
underlying software, gets the merchandise acquired by the user."
Robert W. Gomulkiewicz, Your License Can Be the actual Product: Feedback about the
Promise involving Article 2B,for Software Program and Info Licensing, 13
BERKELEY TECH. L.J. 891, 896 n. 16 (1998).
in just about any suit regarding copyright infringement, the plaintiff must establish its
ownership of a valid copyright, as well as the defendant copied the
copyrighted work. Your plaintiff might prove defendant's copying possibly by
direct evidence or, as they are most often the particular case, by simply showing in which (1) the
defendant had access towards the plaintiff's copyrighted perform as well as (2) that
defendant's work is substantially similar to the plaintiff's copyrightable
material.
B. OSS along with Its Impact about the software Industry
(99.) Hamilton & Sabety, supra note 4, with 250.
(153.) Your label "open-source" came out of a meeting

conducted in between Raymond along together with other OSS luminaries upon February 3, 1998,
in Palo Alto, California. History in the open Supply Initiative, at
http://opensource.org/history.html (last visited Sept. 8, 2000).
Linux may end up being the crown jewel of the open-source movement. This will be the
freely accessible clone with the Unix operating system(159) and is the
operating system upon that many corporate and also Web mainframes
run.(160) Technologically, Linux obscures almost all additional varieties of
software similar to Unix along with its superiority stems from continuous,
rigorous peer review.(161) For-profit computer software companies cannot, and
will not, submit their own code to peer review since of secrecy concerns
surrounding the particular program's source code.(162) Accordingly, the
reliability and stability of proprietary software program provides traditionally been
awful.
(7.) Dennis S. Karjala, Copyright Protection associated with Personal Computer Documents,
Reverse Engineering, along with Professor Miller, 19 U. DAYTON L. REV. 975, 978
(1994). Discover usually ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR
(1999).
(10.) The idea is actually among Congress' explicit powers in order to set up a
system which grants authors the restricted monopoly more than their own perform regarding a
period regarding time. U.S. CONST. art. I, [sections] 8, cl. 8 ("[Congress
shall] market the actual Progress associated with Science as well as the helpful Arts, through
securing
for limited times to Authors and Inventors your exclusive Correct in order to their
respective Writings and Discoveries.... ").
(79.) "When the code gets both much better as well as simpler, which is
when you understand its right." RAYMOND, supra note 7, at 51.
(203.) by the summer of 1999, more than twenty companies offered

computers preloaded using Linux, which includes giants just like Dell, IBM and
Compaq. YOUNG & ROHM, supra note 38, from 144. Discover also Matt Richtel,
First Central Lab for Linux Analysis Planned, N.Y. TIMES, Aug. 30, 2000,
at C5 (discussing the particular anticipated announcement of a partnership by
Intel, IBM, Hewlett-Packard, along along with other prominent personal computer companies to
create as well as finance a new laboratory pertaining to screening along with supporting the actual
latest
versions regarding Linux).
(220.) Gomulkiewicz, supra note 34, at 186.
(222.) Karjala, supra note 26, in 528.
(119.) Id. at 712.
C. Open-Source Software Program and the Implications pertaining to Copyright Law
(36.) Marco Iansiti & Jonathan West, Technologies Integration:

Turning great Analysis Straight Into Fantastic Products, HARV. BUS. REV., May-June
1997, from 69-70. Professor Iansiti comments around the ever-increasing
competitiveness within the information Age:
(227.) Haynes, supra note 63, in 572.
As discussed above, the expenses related along with marshalling the

resources essential to develop mass-market computer software tend to be substantial.(58)
Recent press releases inside the wake regarding Microsoft launch of Windows 2000
are illustrative of the staggering expenses associated to software
development. 1 supply estimated which Windows 2000 cost the company $1
billion to create and also took approximately 5000 developers practically four
years for you to create,(59) the finish product contained 30 million lines of
code.(60) Indeed, the software which has come to become Microsofts flagship
product, Microsoft Office, took over 5 years in order to develop.(61)
Microsoft noted, however, that its expense for each series associated with code developed was
significantly lower than the sector average, that had been $126 in
1989.(62)
(92.) see id. with 141.
Copyleft utilizes copyright law, but flips it over to serve the opposite of its
usual purpose: instead of the method of privatizing software, it becomes a
way of keeping computer software free. the central concept of copyleft is often that we
give every person permission to perform the actual program, copy the program, modify the
program, along with distribute modified versions -- however, not permission for you to add
restrictions associated with his or her own. Thus, the crucial freedoms in which define `free
software' are generally guaranteed to everyone whom includes a copy; they will become
inalienable rights.
Altai developed its own scheduling program with the help of a
former CA employee whom copied "approximately 30% regarding [the] code from
CAs ADAPTER program."(123) On learning associated with the employees actions,
Altai re-wrote the portions of its program in which had been copied from
ADAPTER.(124) CA learned in the copying and also brought copyright along with trade
secret misappropriation claims against Altai.(125)
In particular, programmers are curious about protecting their

software's "source code," the literary function in order to which
copyright protection formally adheres.(33) Supply code describes
"the collection associated with instructions some sort associated with computer programmer writes
[which] tells a computer what to do."(34) the essence involving any
program may be understood through anyone whom has got the technical wherewithal to
reverse-engineer the object code, a method in which converts it into
subject code.(35) because software has a relatively short commercial
life span, the code must remain confidential and proprietary consequently that
the author's program may retain its value.(36)
Computer applications possess when again challenged the actual courts to

distinguish among idea as well as expression, confirming Hand's
pessimism about the capability to look regarding a answer to the problem.(26) The
ubiquity regarding computers and the Internet increase the actual risk for practical implications
of the particular legal debate and consequences attendant in order to its resolution greater
than at any time before.(27)
Science can be ultimately an Open Up Supply enterprise. Your scientific method

rests on the process of discovery, plus a procedure for justification. For
scientific outcomes to be justified, they will must be replicable. Replication is
simply no achievable unless the cause [code] is shared: your hypothesis, your test
conditions, and the results....
where scientists speak involving replication, Open Up Supply programmers talk of

debugging. Exactly Where scientists talk of discovering, open Supply programmers
speak of creating. Ultimately, your Open Up source movement is definitely an extension of
the scientific method, simply because at one's heart associated with the computer industry lies
pc science.
(125). Id.
(165.) Pertaining To an interesting discussion involving how a "hacker"

community defines the "hacker," see Eric Raymond, How for you to Become
a Hacker, in http://www.tuxedo.org/-esr/faqs/hacker-howto.html (last

visited Sept. 6, 2000). Interestingly, the particular "hackers"
disapprove regarding those who "get a new kick out of breaking into computers
and phreaking the particular phone system. Real hackers call these people
`crackers' and wish nothing to complete together with them." Id.
(176.) RAYMOND, supra note 7, in 41. Within addition, Raymond notes,

the central problem associated with software program engineering is the lower reliability.
There isn't sufficient research or engineering to improve the particular process,
but instead computer software engineering involves extensive impartial peer
review. Dern, supra note 55.
The open-source method lends itself in order to debugging by making use of an order
unmatchable by simply proprietary computer software developers--the outcome being that
OSS tends in order to evolve much quicker when compared with proprietary software. An internal
Microsoft memorandum noted that will OSS' brief iterative cycle is actually a
potent competitive weapon within software program development.(168) Your memorandum
observed:
(137.) Id.
(12.) Mark A. Lemley, The Actual Economics Involving Improvement Within Intellectual
Property Law, 75 TEX. L. REV. 989, 1016 (1997).
1. Developer Period Is Actually Paid Out regarding through Offering Software
Id. Interestingly, the entire Totally Free software Movement has its own genesis
in a new widespread problem, the recalcitrant printer. While Younger and Rohm describe,
in 1984 in MIT, Stallman, an essential early OSS figure, has been frustrated that he couldn't fix the
actual printer throughout his office, as well as the manufacturer
denied him access to the supply code that would have enabled him to be able to fix
the bug himself. YOUNG & ROHM, supra note 40, with 20.
(71.) Shapiro & Varian, supra note 44, in 109.
(49.) Id. at 108.
(150.) Michael Stutz, Freed software Winning Support, Generating Waves,

WIRED, with http://www.wired.com/news/technology/0,1282,9966,00.html (Jan.
30, 1998).
(85.) "Increasingly, the need for any good (say, the computer
operating system) depends on the number of users; so a new entrant [in
the market] features small hope against the widely utilized product (say,
Windows)." who Owns the actual Knowledge Economy?, ECONOMIST, Apr. 8,
2000, at 17.
The "abstraction, filtration, comparison" test requires

that the court
(195.) RAYMOND, supra note 7, at 64.
The value the customer locations on software depends upon a new panoply of
factors,(73) most involving which are highly subjective. of the actual elements that
affect a course value, 2 inter-related elements rise towards the fore: its
"supportability"(74) along with if it is the "industry
standard."(75)
(160.) Apache, the web server behind most of your web sites in the
Internet, was developed through open-source. Rob Landley, Microsoft v.
Linux, MOTLEY FOOL, at
http://www.fool.com.portfolios/rulemaker/1999/rulemaker991124.htm (Nov.
24, 1999). Apache software transforms ordinary computers in to sites on
the Globe Wide Web. the "OS" directs your computer's
internal functions. Id. Throughout Netcraft.com's February 2000 survey,
more as compared to half the actual Internet servers around the Internet (9.9 million) were
running on OSS, along with sector analysts estimate that through the end associated with year
2000, half the particular websites about the Internet is likely to be running Linux as their
OS. Could the Enterprise Operate on Free Associated With Charge Software?, STRATEGIC FIN.,
Mar. 2000,
at 52. This can easily be significant because the OS will always be the nearly all critical part of
the system. As Linus Torvalds, the creator associated with Linux, notes, "[o]ne
thing that produces operating systems unique is the actual fact that it's extremely
hard to adjust them.... Therefore changing an os is similar to trying
to go in as well as transplant someone's brain." Michael Vizard,
Linus Torvalds Talks Economics along with Operating Systems, at
http://www.infoworld.com/cgi-in/displayStory.pl?/interviews/980409torvalds.htm (Apr. 9, 1998).
(108.) Id. at 1240.
(219.) Indeed, this project has previously been well underway. Possibly the
leading open-source project attempting to become able to create a user-friendly
interface just like in which employed simply by Windows will be called GNOME.
GNOME's developers claim his or her software will, amongst other
improvements, current a more logical user interface as compared to does the
Microsoft product. Mann, supra note 156, at 42 (GNOME variation 1.0 is
available pertaining to free involving charge at www.gnome.org).
(77.) This can easily be usually known as programs

"portability" within the info industry. According to
Linus Torvalds, "[p]ortability provides extended been any holy grail of the
computer industry." Linus Torvalds, The Actual Linux Edge, within OPEN
SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 101 (Chris DiBona et al.
eds., 1999). Ideally, a perfectly portable plan will be "write once,
run anywhere" software. Throughout various other words, mating other programs to
the first demands little, if any, customization. Id.
(213.) Id. Additionally, companies like the concept that

"improvements inside the software can easily result from a number of sources,
so at least in theory, innovations arrive at industry extremely
quickly." Tarsala, supra note 170.
(31.) Heffan, supra note 29, with 1494-95. Developers favor the
licensing regarding computer software to its outfight sale since licensing
"negate[s] the particular doctrine regarding 1st sale" as well as permits the
precise definition of warranty terms. Id. with 1494 n.37 (citing William
H. Neukom & Robert W. Gomulkiewicz, Licensing rights for you to Computer
Software, inside TECHNOLOGY LICENSING & LITIGATION 778 (PLI Pats.,
Copyrights, Trademarks & Literary Prop. course Handbook Series No.
G4-3897, 1993)).
B. Introduction in order to Copyright Law
(95.) Id. in 250; see additionally Apple Computer, Inc. v. Franklin

Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983) (establishing that
copyright protection is actually extended to each your human-readable source code
and the particular computer-readable object code).
Chris DiBona et al., Introduction to end up being able to OPEN SOURCES: VOICES FROM THE
OPEN SOURCE REVOLUTION 7 (Chris DiBona et al. eds., 1999).
(182.) Gomulkiewicz, supra note 34, at 186. the computer software industry
has embraced the use of mass-market end-user licensing agreements
("EULAs"). Robert W. Gomulkiewicz & Mary L. Williamson, A
Brief defense involving Mass market Computer Software License Agreements, 22 RUTGERS
COMPUTER & TECH. L.J. 335, 339-41 (1996).
(164.) RAYMOND, supra note 7, with 38.
(173.) Dem, supra note 55.
(136.) E.g., Haynes, supra note 63, from 572.
(101.) Id. from 1225.
II. OPEN-SOURCE SOFTWARE
(69.) Rivette & Kline, supra note 67, in 55-56.
(109.) Id.
(91.) Notice generally FERGUSON, supra note 42, with 304-05 (providing
an intriguing behind-the-scenes look at your competitors between
Microsoft as well as WordPerfect concerning the "bundling" involving programs
into a workplace suite).
The long-standing debate more than the correct scope of copyright

protection for a computer program's non-literal element is actually moot due
to totally free use of OSS. Nevertheless, copyright law retains an important
role within trying to end up being able to keep OSS free of charge since Linux's kernel code is
copyrighted
and distributed making use of the particular GPL. without copyright protection, "the
open supply software program development model could be nothing a lot a lot more than an
honor system."(220)
(110.) Id. in 1239.
(218.) Landley, supra note 160.
Pragmatically, the "broad" view can be appropriate since it

brings a lot more and more intellectual territory within open-source's
embrace. Whelan's critics feared its implications pertaining to innovation in
the information industries,(226) casting any especially suspicious eye
on Microsoft and also its ever-expanding empire. Additionally, critics argued
that over-broad copyright protection ended up being wasteful since developers
were constantly re-inventing your wheel to be able to avoid infringing about a
competitor's copyrighted software.(227) Broad copyright protection
of OSS obviates these concerns.
Additionally, your fixed development costs regarding producing software

are sunk costs that will can certainly not be recovered if the strategy is commercially
unsuccessful.(47) Generally, unsuccessful software features really little, if
any, tangible salvage value.(48) Alternatively, your variable costs
associated using computer software development remain relatively continuous no
matter how many replicates associated with the software tend to be made.(49) Unlike many other
goods, the price of producing yet another unit of software applications are almost
negligible.(50) The Actual special price structure attendant towards the production of
software "offer[s] huge economies involving scale: the greater an individual produce,
the lower your typical price involving production."(51) The Actual lions reveal of
software development costs tend to be incurred up front, and furthermore the developer does
not incur additional costs no matter the actual variety of replicates made.(52)
(166.) RAYMOND, supra note 7, with 41. Raymond labeled this

phenomenon "Linus's Law." Id. "Given enough
eyeballs, almost all bugs are generally shallow." Id. He observes which using the
Internet, "Linux had been the initial project to produce a conscious and
successful effort to help make use of the whole planet as its talent pool." Id.
at 62. Later, "[n]o closed-source developer can easily match the pool of
talent your Linux community may deliver to bear on a problem. Extremely few
could afford even to hire [as lots of people as have got contributed to
OSS]." Id. at 66.
(228.) computer Assocs. Int'l, 982 F.2d in 706.
(46.) Id. from 108.
break down the allegedly infringed plan in to its constituent structural

parts. Then, by examining each of these parts regarding such things as
incorporated ideas, expression that's always incidental to those
ideas, and also elements that are taken from the public domain, a court would
then become capable of sift out almost all non-protectable material. Left having a kernel,
or even feasible kernels, regarding inventive expression after subsequent this method of
elimination, the actual court's last step would be to compare this material with
your construction associated with an allegedly infringing program. the result of this
comparison will decide whether the protectable elements with the program
at issue tend to be substantially similar therefore as to warrant a new obtaining of
infringement.(132)
(93.) Hamilton & Sabety, supra note 4, in 249.
Although an OSS author might wish to make his work freely available
for review and alteration, the author must avoid others from
establishing proprietary pursuits within their derivative works.(177)
Consequently, Linux's code "kernel"(178) is
"copylefted"(179) and also dispersed beneath your terms of the General
Public License ("GPL").(180)
(112.) See, e.g., Michael S. Oberman & Alan Behr, Protecting

Valuable IP Franchises: Copyright Solution, N.Y.L.J., Oct. 30, 1998, at
5. Oberman and Behr note which "[w]ithin your entertainment
industries, durable hits are as rare as April snow," and
intellectual property safeguards like copyright are usually vitally important
to protect the authors proprietary interests. Viewed from the
perspective involving an author protecting any potential franchise, broad
copyright protection is desirable.
(9.) 17 U.S.C. [sections] 102(a). However, section 102(b) areas a

limit on this copyright protection: "[i]n simply no case can copyright
protection with an original perform regarding authorship extend for you to just about any idea,
procedure, process, system, method associated with operation, concept, principle, or
discovery, no matter your form in which it's described, explained,
illustrated, or even embodied in these work." 17 U.S.C.[sections] 102(b).
Congress explicitly extended copyright protection to end up being able to computer software using
the
Computer software Copyright Act involving 1980, Pub. L. No. 96-517, 94 Stat.
3028 (codified as amended at 17 U.S.C. [sections] 117 (1994)). Software
need certainly not become stored on a disk being deemed "fixed in a tangible
medium regarding expression." MAI Methods Corp. v. Peak Computer, Inc.,
991 F.2d 511,517-19 (9th Cir. 1993) (holding an unlicensed user
infringed on a program's copyright through flipping on a new computer, which
caused the actual operating-system being uploaded in the computer's
permanent storage to its random access memory. Even though a permanent copy
was not necessarily generated, "the representation created within RAM was
sufficiently permanent or even steady permitting it to be perceived,
reproduced, or even otherwise communicated.").
(61.) Marco Iansiti, Microsoft Corporation: Workplace business Unit,

HARV. BUS. REV., May-June 1994 (faculty sample), with 1. Though the
total cost involving creating Microsoft Workplace is, in best, an estimate, the
research along with development expense for the project in between June 1987 and
June 1989 has been $218 million. Id.
(209.) This can also be readily obtainable simply because developers consider free
source code and develop programs which are considerably less expensive
than conventional products. With Regard To example, Corel Pc sells any range of
Linux-based network computers called Netwinder. Aside coming from being
superior in order to commercial alternatives, the particular company's executives say
that "licensing competitive OS would have expense $500,000 as well as six
months to always be able to annually associated with development time." Itoi, supra note 55. For
example, OSS distributor Caldera sells its OpenLinux Base 1.2 multi-user
office suite for $199. The Particular comparable Microsoft product, NT Workstation
and Microsoft Workplace expenses a lot a lot more than $1,500. Paula Rooney, open OS
Provides Flexible, stable Computing Platform: Linux Environment Offers
Endless Possibilities, COMPUTER RETAIL WEEK, Aug. 17, 1998, with 19.
Traditional copyright law had been ill equipped to accommodate the sale
of computer programs at the dawn in the Info Age.(28) Software
developers in the late 1960's as well as early 1970's were
consultants who usually worked with regard to individual customers along with wrote
specialized software program with regard to their specific clients' needs.(29)
Typically, the programmer would retain the actual rights to his function along with permit
the client to use the program beneath any licensing agreement.(30) The Actual terms
of every license had been generally negotiated on their own using each client
and contained provisions that will necessary the client in order to keep your software
confidential along with restricted technique software.(31) Licenses thereby
enabled the particular programmer in order to widely distribute his function whilst protecting
his proprietary interests.(32)
(104.) Id.
(15.) Notice 17 U.S.C. [sections] 106. "A `derivative work'

is any perform based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization, fictionalization,
motion picture version, audio recording, artwork reproduction, abridgment,
condensation, or perhaps some other form by which the work could end up being recast,
transformed as well as adapted." Id. [sections] 101. "A derivative

work can be translation in in order to a distinct language as well as medium." Landes
& Posner, supra note 1, at 353. (16.) Landes & Posner, supra
note 1, in 353.
(3.) Michael Risch, How Do Whelan v. Jaslow and also Lotus v. Borland
Both End Up Being Right? Reexamining the Economics of Computer Programs Reuse, 17
J. MARSHALL J. COMPUTER & INFO. L. 511, 512 (1999).
(174.) FERGUSON, supra note 42, in 109.
(118.) 982 F.2d 693 (2d Cir. 1992).
Furthermore, supporters involving narrow copyright protection also believe

that your defensive perimeter Whelan erects around the program's
central "idea" leads to inefficiency and also waste inside the
information industry.(136) Pertaining To example, under the particular "broad"
interpretation, the wide selection of non-literal elements tend to be protected and
the possibilities for any rivalling software developer for you to infringe upon
the expression embodied in the 1st perform broaden accordingly. Mindful of
the possible regarding infringement, subsequent developers are
"constantly going over outdated ground, carefully avoiding usage of the
code of their particular competitors,"(137) throughout an attempt to reinvent the
process, that wastes sources and also slows progress.(138)
(42.) CHARLES H. FERGUSON, HIGH STOKES, NO PRISONERS: A
WINNER'S TALE OF GREED AND GLORY IN THE INTERNET WARS 107 (Times
Business 1999).
(135.) Karjala, supra note 7, in 993-94.
(25.) Nichols v. Universal Images Corp., 45 F.2d 119, 121 (2d

Cir. 1930) (defining the particular boundary between "ideas" and
"expression" with regard to plays). see furthermore Peter Pan Fabrics, Inc. v.
Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) ("No
principle could be stated concerning when an imitator features gone beyond copying
the ìdea' and has borrowed its èxpression.' Choices must
therefore inevitably be ad hoc."). Even though no universal rule
exists, your courts have got distinguished between "idea" and
"expression" in certain areas, as well as these decisions are akin to
compass points throughout in any other case uncharted territory. With Regard To example,
throughout United
States v. Hamilton, 583 F.2d 448, 452 (9th Cir. 1978), the Ninth Circuit
held which maps are usually protectable, although inside Mazer v. Stein, 347 U.S.
201,218 (1954), your Supreme Court held the practical areas of a
lamp are usually not.
(81.) Id.
Glyn Moody, The Actual Greatest OS That Will (N)ever Was, WIRED (Aug. 1997), at
http://www.wired.com/wired/5.08/linux.html.
(180.) Mann, supra note 156, from 39. With Regard To purposes involving this article,
GPL is shorthand for that numerous licenses that will perpetuate the
distributed collaboration model regarding software program development. Such licenses
include Netscape's Mozilla and also Netscape Public Licenses (NPL), the
Berkeley software Distribution license (BSD), also to some extent,
Sun's Neighborhood source License.
(152.) Id.
The half-life regarding commercial software program is measured inside months, and a
developer must establish as well as protect a market niche if he hopes to
recoup his development costs(53) In case a new companys software doesn't achieve
a unique place within the market, it really is instructed to compete about the price, and
if instructed to "reduce its prices to some level near its marginal
production costs ... which organization won't ever be capable of recoup its big
up-front investments. The idea will, throughout time, encounter economic doom."(54)
The big start-up expenses inherent within software development and the ease
with that competitors may copy software program get forced companies to
zealously guard his or her software program supply code.(55)
Id. from 96. Richard Thoman, Xeroxs Chief Executive Officer, stated
the importance associated with intellectual property much more bluntly:
"[c]ompanies which are great with managing IP will win. The Particular ones that
arent will lose." Rivette & Kline, supra note 67, at 54.
(41.) Clapes et al., supra note 5, with 1506.
The hackers who spend countless hrs creating along with improving OSS
are certainly not compensated regarding their period simply by promoting the particular resultant
software.(190) Many hackers seek merely psychic compensation pertaining to avakin life money
hack apk their
work. Presently there are, however, valid business reasons behind participating in
the open-source development process.
(73.) Observe id. in 110-13.
(23.) Id. with 104.
Software,(44) unlike some other goods, offers "a distinctive cost

structure: producing the first copy [of any program] will be usually very
expensive, however producing subsequent replicates is extremely cheap.... The Actual fixed
costs involving producing info are large, throughout additional words, nevertheless the
variable costs regarding reproducing it tend to be small."(45) Because
competition tends they are usually driving costs to the amount of marginal costs,
information merchandise can easily turn in to low-priced commodities, generating it
impossible pertaining to companies to always be able to recoup their up-front investments and
eventually bringing regarding their own demise.(46)
(83.) see supra note 78 and also accompanying text.
(51.) Id.
(230.) computer Assocs. Int'l, 982 F.2d with 706.
(140.) Id.
(201.) Raymond describes this shift as the distinction between a

program's "use value" and its "sale value."
RAYMOND, supra note 7, with 141-48. "[L]ike almost all various other kinds regarding tools
or capital goods, [computer programs] have 2 distinct kinds of
economic value. They Will have got use worth and also sale value. The Actual use worth of a
program will be its economic value like a tool. the sale worth of a program is
its value as a salable commodity." Id. at 141. Raymond argues that
computer software program will not have the characteristics of the typical
manufactured good and that the application industry is "largely a
service sector operating beneath the persistent however unfounded delusion which it is a
manufacturing industry." Id. at 145.
(155.) Introduction for you to Open Up Source, supra note 154.
(120.) Id. in 698.
E. The Actual Existing Debate
The classic model associated with software development is based upon two
premises: 1) developer occasion will be paid with regard to through selling your software; and also
2)
the cost software will fetch from marketplace is proportional in order to its worth as
an economic tool.(56) Microsoft may become the nearly all famous practitioner involving this
method involving computer software development,(57) plus it is the concentrate regarding this
article.
(122.) Id. with 698-99.
Any time programmers about the Web can read, redistribute, along with modify the
supply regarding an item of software, it evolves. people boost it, people adapt
it, individuals fix bugs. and this can take place at a speed that, if 1 is utilized to
the particular slow pace regarding conventional software program development, seems
astonishing.
[T]he open-source community ha[s] learned that this rapid evolutionary
process creates much better software program than the conventional closed model, in
which only a few programmers can see source [code] as well as everybody different must
blindly make use of an opaque block regarding bits.(155)
(194.) Id.
(202.) As of late 1999, Red Hat's market capitalization alone

was $7 billion. Matthew A. DeBellis, Red Hat Bulks Up, RED HERRING MAG.
(Nov. 17, 1999), with http://www.redherring.com/insider/1999/1117/news-redhat.html.
(212.) Id.
(229.) Haynes, supra note 63, from 572.
(190.) Id. Several for-profit companies which sell OSS but do not assert
proprietary interests over the software have got emerged. With Regard To example, Red
Hat sells the customer compiled, easy-to-install, pre-packaged Linux
software. Customers "could download Linux off the World wide web for free,
but many pay $50 to have Red Hat-brand code, that is simple to install and
comes along with documentation and also support." Observe J. William Gurley, Why
Free Code Tends To End Up Being Able To Make Sense, FORTUNE, Aug. 2, 1999, in 228. Indeed,
companies
like Red Hat rely upon OSS's continued revision and improvement for
their sales; it behooves these firms to grow the actual open-source
community along with assistance copyleft as well as GPLs. Robert young recognizes this
fact. He states, "[t]he Average Person License from the Free
Software Basis is actually in the spirit regarding open source and, simply because it
ensures the modifications and also improvements made for the OS remain
public, many successful with regard to managing a cooperative development
project." Robert Young, giving It Away.' How Red Hat Software
Stumbled Across any New Economic Model along with Assisted Enhance an Sector in
OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 120 (Chris Dibona
et al. eds. 1999).
(183.) Heffan, supra note 29, in 1508 (citations omitted).
(100.) 797 F.2d 1222 (3d Cir. 1986).
(193.) McHugh, supra note 170, from 96.
(40.) Id. Superior technology, however, isn't enough to guarantee

a program's commercial success. ROBERT YOUNG & WENDY GOLDMAN
ROHM, UNDER THE RADAR: HOW RED HAT CHANGED THE SOFTWARE BUSINESS -- AND
TOOK MICROSOFT BY SURPRISE 60 (Coriolis 1999). Ultimately, your software
must be much better in meeting the particular user's needs when compared with beating the
competition's product. Robert Young, CEO associated with Red Hat notes,
"[a]s anyone who may have spent greater than a handful of years inside [the
software] sector knows, your much better technology seldom wins inside the
marketplace unless which technology represents higher rewards to the
user than the alternatives." Id.
(103.) Id. with 1226-27.
Accordingly, the actual precise scope involving protection that will copyright affords
the non-literal aspects of a computer program is hugely important
because of the sums from stake, along with vigorous debate has ensued upon this
topic. by operation involving marketplace forces, OSS features mooted the particular debate more
than the
precise nature involving copyright protection afforded a computer
program's non-literal aspects. Open-source software is generally
superior to its proprietary counterparts and is readily accessible for free involving charge on
the Internet. Aside through its role protecting the particular code kernel,
copyright's significance for you to software development provides been
substantially diminished because OSS uncouples the cost-effective incentives
from the particular imaginative process.
CONCLUSION
(187.) Gomulkiewicz, supra note 34, at 190. Gomulkiewicz argues

that although EULAs tend to be adhesion contracts, they might be nonetheless
enforceable. Discover in addition Gomulkiewicz & Williamson, supra note 182, at

344 n.31.
Id. see typically Marco Iansiti & Alan MacCormack, Developing

Products on Web Time, HARV. BUS. REV., Sept.-Oct. 1997, from 108
(discussing the specifications regarding flexible production processes because
of the vaporous nature regarding e-markets as well as the fleeting possibilities to
capture them).
(224.) Karjala, supra note 26, with 528.
As using additional inventive functions involving authorship, copyrights protect both

the literal text involving computer software too because the non-literal essence involving its
expression.(93) Literal copying can always be as easily identified inside the knowledge
product context such as any other.(94) However, unlike various other works,
non-literal infringement associated with knowledge goods is a new lot harder to
identify.(95) the difficulty springs primarily through a problem endemic to
knowledge goods distinguishing unprotectable ideas via their
protectable expression. Fixing this boundary is actually involving tremendous import to
the details industry, which usually watches the actual ebb along with flow regarding this debate
with nervous anticipation as it plays out within the courts.(96) From stake is
the power to protect knowledge, claim it as ones property, as well as reap
the advantages that follow.(97)
(225.) FERGUSON, supra note 42, from 107-08.
Courts ought to go in advance and also take benefits of OSS in to thought when
evaluating the scope associated with copyright protection with regard to the
non-literal elements associated with computer programs. Open-source software program serves
the goal of copyright to be able to "promote broad public availability of
literature, music, along with one other arts"(221) without having the actual traditional
problem of providing incentives for your authors whom produce these works.
Because open-source trumps commercial computer software in terms of your quality
of the merchandise and the efficiency by which it's produced, courts should
encourage along with perpetuate the actual open-source movement.
(72.) Id.
By time the truth produced its means to the 2nd Circuit, the issues
had been narrowed to copyright infringement and also trade secret
misappropriation claims.(126) Your courts copyright infringement
analysis(127) focused primarily on regardless of whether the two companies'
programs had been substantially much like one another.(128) Specifically,
the court inquired if the re-written portion involving Altai's program
infringed upon the non-literal composition regarding CA's copyrighted
ADAPTER program.(129)
(148.) Risch, supra note 3, in 511.
The same is not correct regarding proprietary, closed-source software, where

programming bugs are an endemic difficulty and also releases are frequently as
late while they are generally disappointing. The Particular classic development process
recognizes the difficulties and this results in the management design that
defines rigid goals as well as strives regarding central controls to discover all
the bugs and fasten them.(173) Debugging big programs has a Herculean
effort for their tremendous complexity plus it is certainly not possible for
anyone to retain this complexity with out the help of the software program program
designed with regard to this kind of task.(174) With Regard To example, "[if] Microsoft changes
Windows 98, it can't effortlessly peek to the supply code involving Quicken or
Word Perfect to determine what's heading to happen."(175) Since proprietary
software developers have restricted debugging resources, they will cannot match
the open-source community's speedy, holistic approach.
Consequently, your standard development method generates software program that
often disappoints clients that realize that the software just isn't bug
free.(176)
Relying upon learned Hands analysis inside Baker v. Selden, the court
fleshed out your collection in between idea along with expression, outlining what has
come being known since the "structure, sequence, organization"
test:
(115.) Notice Haynes, supra note 63, in 568.
(60.) Id.
(102.) Id. at 1228.
(22.) Id. with 103-04.
(89.) FERGUSON, supra note 42, from 141.
Companies similar to Microsoft jealously protect his or her programs

"source code" since in the enormous development costs
associated using creating proprietary software.(63) Copyright,
therefore, is essential regarding protecting developers investments because
"[i]f their particular intellectual property can be copied easily, that they will
not end up being capable of produce possibly prosperity for their own proprietors as well as
substantial wages for
their employees."(64) Throughout order to become able to protect the particular fruits involving
their
investment, software owners will only sell your client a
legally-protected "sealed block regarding bits in which [the user] cannot
examine, modify, or even evolve."(65)
(65.) Raymond, supra note 57.
(127.) the court noted:
1. Your broad camp
(96.) Observe Thurow, supra note 64, with 97. Companies for example Intel
guard their own intellectual property and consequently they get employed his or her legal
departments for you to defend against its unauthorized use by simply others. Id.
The underlying premise with the proprietary software program development is

that "most developer period will be paid out regarding through sale value," which in turn is
"proportional for you to its development expense ... and furthermore to its
value."(188) OSS fundamentally alters these values.(189)
(53.) Notice Clapes et al., supra note 5, at 1509 (noting in which a

rational actor will only key in the software marketplace if he has sufficient
"lead time" over your competition to recoup his development
costs). Copyright is the tool that will provides your rational actor together with the
requisite "lead time" as well as thereby encourages developers to
bring new services for you to market. Id.; notice in addition Charles R. Morris &
Charles H. Ferguson, How Architecture Wins Technologies Wars, HARV. BUS.
REV., Mar.-Apr. 1993, with 86, 87 (stating which in the information Age,
"success flows towards the organization which manages for you to set up ... control
over a broad, fast-moving, competitive space"). Dominance within a
"competitive space" means controlling one as well as more of the
standards by that information is assembled. Id. Failure to achieve
dominance in a "competitive space" indicates the particular software
developer must compete about the price, that is especially unprofitable.
Id.
1. The Particular hackers who use, develop, along with improve OSS are not
compensated pertaining to their particular efforts by simply revenues generated through the
software's sale
A. open Supply Software
(76.) Shapiro & Varian, supra note 44, at 107.
This view provides generous protection into a knowledge products

non-literal aspects, bringing such elements as the programs structure,
sequence, and also organization within its scope.(99) Whelan Associates, Inc.
v. Jaslow Dental Laboratory, Inc.,(100) is the standard-bearer regarding this
camp, along with represents the position that will copyright affords substantial
protection for the non-literal composition associated with pc programs.
(132.) Id.
(2.) U.S. CONST. art. I, [sections] 8, cl. 8.
(154.) Introduction to become able to open Source, at

http://www.opensource.org/intro.html (last visited Sept. 6, 2000).
Apropo of the earlier "cathedral" metaphor, Raymond describes
this method since the "Bazaar" design of computer software development.
"[The open-source] style involving development -- release [betas] early
and often, delegate all you can, most probably to the point of
promiscuity.... Zero quiet, cathedral-building here -- rather the
[open-source] neighborhood seemed to end up being able to resemble a fantastic babbling bazaar
of
differing agendas and also approaches ... out of which in turn the coherent and stable
system could seemingly emerge only by a succession of miracles."
RAYMOND, supra note 7, from 30 (emphasis added).
(94.) Id.
(57.) Discover Eric S. Raymond, Your Evangelists, RED HERRING MAG.,

available at http://www.redherring.com/mag/issue63/news-freeware2.html
(Feb. 1999).
(30.) Discover id. (discussing the programmers' "unclear"

copyright and patent fights within the software program they'd created).
(177.) Heffan, supra note 29, with 1489, 1507-08.
(151.) David Einstein, Your Penguin which Roared, SF GATE, at http://

www.sfgate.com/cgibin/article.cgi?file=/chronicle/archive/1998/09/08/BU8
5830.DTL (Sept. 8, 1998).
(124). Id.
(113.) Clapes et al., supra note 5, with 1501 ("The vitality of

the software program industry could probably be imperiled by a drastic limitation regarding the
scope involving copyright protection available for the authors involving computer
programs.").
(142.) Id. from 528.
Generally, the contribution to the existing, copyrighted function must

render the particular derivative perform distinguishable in a meaningful method to
avoid infringement.(18)
Computer Associates concerned a program referred in order to as CASCHEDULER which in turn

was
a job-scheduling plan developed as well as marketed by Pc Associates
("CA").(120) CA-SCHEDULER contained the sub-program called
ADAPTER which had zero use impartial of CA-SCHEDULER.(121) However,
ADAPTER was extremely beneficial because it enabled CA-SCHEDULER to run on
different forms of computers.(122)
(200.) Id. with 142.
Copyright does not protect ideas, but only the author's

original expression regarding individuals ideas.(19) With Regard To example, within the seminal
case
of Baker v. Selden,(20) the particular Supreme Court denied the writer of a
copyrighted e-book exclusive rights for the system regarding bookkeeping in which his
text explained.(21) Inside repudiating the particular author's claim, the Court
distinguished protectable expression from unprotectable ideas.(22) The
Court noted, "whilst nobody features a proper for you to print as well as publish his
book, or even just about any material part thereof, as a magazine intended for you to convey
instruction inside the art, anybody could practise as well as use the artwork itself
which he offers described and also illustrated therein."(23)
(21.) Id. at 107.
(67.) Observe Kevin G. Rivette & David Kline, Discovering New Value
in Intellectual Property, HARV. Bus. REV., Jan.-Feb. 2000, at 54. The
authors state that the licensing industry features but to completely mature and that
revenues via licensing intellectual property could best a new half-trillion
dollars annually throughout ten years. Id. in 59. A New computer software industry analyst
noted in which Microsofts Windows 2000 relies with an aggressive licensing
scheme for you to increase revenue. Michael Kanellos, Licensing Costs a new Feature
of Windows 2000, Researcher Says, CNET News.com, at
http://yahoo.cnet.com/news/0-1003-200-1553352,
html?tag=st.ne.ron.lthd.1003-200-1553352 (Feb. 17, 2000).
(192.) Moody, supra note 149. "For many hackers, the particular aim is
to produce neat routines, tight chunks involving code, or perhaps cool apps in which earn
the respect associated with their particular peers." Id.
(29.) Ira V. Heffan, Copyleft: Licensing Collaborative Functions in the

Digital Age, 49 STAN. L. REV. 1487, 1494 (1997).
(58.) Notice Shapiro & Varian, supra note 44, from 107.
In Whelan, Rand Jaslow contracted together with Elaine Whelan to write a

computer program for managing Jaslows dental laboratory.(101) Whelan
wrote a program for Jaslow along with secured copyright protection for it.(102)
Realizing there ended up being clearly any marketplace for your program, Jaslow began to develop
a
program much like Whelans however inside a different, much more available computer
language.(103) Following approximately two years, Jaslow severed his
business relationship along with Whelan along with marketed his variation with the program to
other dental laboratories.(104) Whelan then filed suit, claiming that
Jaslow infringed upon her copyright.(105)
True for their ethic, attaining respect through his or her peers in the
open-source community can be often the hackers' most prized
compensation.(191) most who use and also enhance OSS do this using the hope of
making a distinctive along with lasting contribution to the entire body regarding knowledge or, in
hacker terminology, approaching with a "cool" hack.(192) For
example, only hrs right after Netscape had introduced the particular code with regard to its
Internet browser, a group of Australian programmers "had attached a
cryptographic add-on" that enabled Netscape's program to
conduct secure World wide web transactions.(193) The Actual Australians "were
paid handsomely -- however, not together with money. The Particular programmers ... got paid out
in
respect from your rest involving the programming neighborhood plus the
satisfaction regarding turning out an elegant useful bit of
software."(194)
(172.) Risch, supra note 3, with 532 ("An intriguing question

is if the availability of free associated with charge computer software decreases the actual incentive
for
others to produce contending software because of to become able to lack of demand in any kind of
price
above zero.").
For example, Texas Instruments' aggressive licensing program

earned the company more than $1.5 billion inside fees, as well as in some years,
the licensing costs exceeded the particular companys operating income.(68) IBMs
aggressive licensing plan boosted their own royalties 3300% since
1990--from $30 million to always be able to almost $1 billion today--a sum "that
represents one-ninth involving IBMs annual pretax profits."(69) Your money
goes directly to IBMs bottom line, which in turn means that "IBM would have
to offer approximately $20 billion price of additional products every year, or
an quantity comparable to one-fourth [of] its worldwide sales" to always be able to match
the income generated via licenses.(70)
(179.) Richard Stallman, The Actual GNU operating System as well as the Free
Software Movement in OPEN SOURCES: VOICES FROM THE OPEN SOURCE
REVOLUTION 59 (Chris DiBona et al. eds., 1999).
(139.) Id.
Some commentators, such as Professor Arthur Miller,(111) and

software developers who have achieved significant popularity inside the
marketplace,(112) keep the broad protections afforded through the Third
Circuits decision in Whelan.(113) Others, however, are already critical of
Whelan because they believe its rationale over-protects computer
programs, thereby impeding innovation.(114) With Regard To example, Professor Mark

Haynes states that over-broad copyright along with patent protection, such as that
provided within Whelan, blocks innovation within the software arts.(115)
Innovation is slowed and resources are usually wasted since developers are
constantly getting made to reinvent your wheel to become able in order to avoid
accusations of infringement.(116) Critical regarding this, the
"narrow" camp prefers an even more precise application associated with copyright
protection, believing it to be a lot more conducive to be able to innovation and
advancement. This narrow view of copyright protection is set forth
below.
(13.) Id.
[P]roduct life cycles have got shortened dramatically, forcing companies to

develop and also commercialize technologies quicker as compared to ever. Throughout the
semiconductor industry, regarding example, product existence cycles shrank simply by 25% in
the 1980's alone. With the identical time, uncertainty inside the marketplace has
soared. Contemplate your computer industry, by which industry specifications change
incredibly rapidly along with consumers possess a seemingly insatiable thirst for
performance. by the particular mid-1990's, couple of could predict along with virtually any
confidence how
your Internet, the particular price of DRAM chips, or even the emergence of Java as an
World wide web scripting language would shape customers' demands even six months
into the future.
(70.) Id. from 56.
(168.) Bob Trott, Microsoft Memo Ponders How for you to Slow Linux, PCWORLD
TODAY, in http://www.pcworld.com/news/article.asp?aid=8647 (Nov. 6,
1998).
(8.) 17 U.S.C. [subsections] 101-1332 (1994).
(28.) Mark A. Lemley, Intellectual Property and Shrinkwrap

Licenses, 68 S. CAL. L. REV. 1239, 1242-43 (1995).
(204.) Notice Jeff Claubaugh, Shall We Be Facing Linux Overload?, CBS

MARKETWATCH (Dec. 16, 1999), at
http://cbs.marketwatch.com/archive/19991216/
news/current/eavesdropper.html. Robert young analogizes Red Hat's
"value proposition" to the making of ketchup. "Ketchup is
nothing more than flavored tomato paste.... The idea is actually effectively all
freely-redistributable objects: tomatoes, vinegar, salt and also spices....
We don't make ketchup since it is actually cheaper along with much more
convenient to get ketchup ... of computer can be to make it.... "Young,
supra note 190, in 116.
(207.) Tarsala, supra note 170.
The software program resulting from the open-source method is generally

superior when compared with which developed using proprietary methods(156) since the
open-source code is continually reviewed, tested, and also debugged faster and
more intensively.(157) This kind of enables it to always be able to rapidly adapt to become able to
virtually any
environment.(158)
(210.) Moody, supra note 149.
(131.) Id. with 706.
(5.) Anthony L. Clapes et al., Silicon Epics and Binary Bards:

Determining the particular proper Scope of Copyright Protection for Computer
Programs, 34 UCLA L. REV. 1493, 1505 (1987).
(34.) Robert W. Gomulkiewicz, How Copyleft Makes Use Of License Legal Rights to
Succeed in the open source Computer Software Revolution and the Implications for
Article 2B, 36 Hous. L. REV. 179, 180 (1999). "Source code is
`[h]uman-readable plan statements published in a high-level as well as assembly
language.'" Id. with 180 n.4 (quoting COMPUTER DICTIONARY 337,
443 (Microsoft Press 1991)), and also "is understandable to always be able to anyone
proficient because language." Id. from 181. The Actual pc processes
the source code by means of a compiler which translates it directly into "object
code," the combination of O's and also l's otherwise
incomprehensible to humans. Apik Minassian, The Particular Death regarding Copyright:
Enforceability of Shrinkwrap Licensing Agreements, 45 UCLA L. REV. 569,
573 n. 12 (1997).
Along With the particular advent of the information revolution--or the actual third industrial
revolution (call it everything you will)--skills and knowledge possess turn out to always be able to be
the
just way for you to obtain sustainable long-term competitive advantage. Intellectual
property lies at the middle of the actual modern companys economic achievement or
failure. ... Main companies like Microsoft personal absolutely nothing of worth except
knowledge. Fighting to always be able to defend along with extend the domain of their particular
intellectual
Property is that they play the cost-effective game.
(24.) Discover Arthur R. Miller, Copyright Protection with regard to Computer
Programs, Databases, as well as Computer-Generated Works: Is Actually Something New Since
CONTU?, 106 HARV. L. REV. 978, 982 (1993). Miller notes that the current
debate over copyright and also pc programs is actually but yet another step inside a
debate which includes surrounded the particular development of new technology:
"[similar] apprehensions were voiced about photography, motion
pictures, sound recordings, radio, television, photocopying, along with various
modes of telecommunication." Id. Notice in addition Vincent J. Roccia,
What's Fair is (Not Always) Fair about the Internet, 29 RUTGERS L.J.
155, 163-64 (1997) ("After all, the actual resilient copyright law has
withstood the actual attack involving previous technological èvils' like the
photocopier, your video cassette recorder (VCR) and also audio recorder ...
copyright provides absorbed these new technologies having a legislative tweak of the Copyright Act
or even a judicial nod towards the Act's equitable fair
use exception."). Conversely, David Nimmer indicates within Adams and
Bits: of Jewish Kings and also Copyrights, 71 S. CAL. L. REV. 219, 223
(1998), that the classic copyright scheme is ill-equipped in order to deal
with the data age, specifically the actual Internet. Nimmer
distinguishes the particular existing technological advances from prior advances
on the reasons the information Age Group will not deal with tangible
things, however "bits" regarding information: "For your Interact as a
distribution channel deals in zero way along with atoms, nevertheless just transports
bits." Id. Prophetically, Nimmer notes the difficulty this change
presents for you to copyright: "The copyright industries thus watch in
hopeful horror because the revolution unfolds." Id. from 223-24.
(75.) Id. in 280-81.
(97.) Id.
(196.) Several for-profit organizations have got begun to give software

(and information) away. There are a pair of reasons for this: (1) the marginal
cost of making an added copy can be virtually nothing, and also (2) information
is an "èxperience good' -- customers do certainly not know what its
worth until they've actually attempted it." Shapiro & Varian,
supra note 44, from 108. "Many companies use free of charge versions just to
create awareness for their products." Id. Your developers hope that
the user will become comfy sufficient with an incomplete free regarding charge version
to spend for your total version. Id. from 108-09. Similarly, companies
give away a completely free simple model regarding their particular software "in order in order to
build
a base involving consumers to end up being able to that you'll be in a position to sell follow-on
products, such as
extensions, upgrades and also services.... The Particular idea is actually to obtain clients to
become dependent about the product. the much more they will use it, the particular more
interested they'll be in add-ons." Id. at 109.
2. the narrow camp
(129.) Id. in 702.
(33.) Miller, supra note 24, at 983.
The narrow camp confines the scope of copyright protection by

excising your applications non-copyrightable elements prior to identifying its
overall copyright protection.(117) the Second Circuits selection in
Computer Associates International v. Altai, Inc.,(118) will end up being the leading
case for that narrow camp, and it explicitly rejected the particular approach taken
in Whelan.(119)
A pc program's code, like a painting or a poem, will be the

product of the programmer's ingenuity, skill, along with creativity.(37)
It reflects any cautious balancing regarding various rivalling interests, as well
as thought in the resulting program's size, elegance, and
ease regarding use.(38) Accordingly, "[t]here are generally as numerous approaches to approach
the process associated with writing a course ... as there are programmers."(39) A
program's worth resides throughout the means it balances the different concerns and
ultimately how well it meets your user's needs.(40) Computer

programs tend to be the finish results of an intensive, meticulous process, and
"the items under consideration [are] derive[d] totally coming from the
creative energies of authors practicing the craft."(41) Your process
of "[c]ommercial computer software style is ... any rigorous,
capital-intensive activity,"(42) along with developers depend on copyright
to protect their own investment within the resulting product.(43)
(170.) Josh McHugh, Pertaining To the particular Enjoy associated with Hacking, FORBES, Aug. 10,
1998,
at 96 (providing a great example of the speed using which OSS develops
solutions in order to problems). Mike Tarsala, Linus, Linux Steal the particular Comdex
Show, CBS MAKETWATCH,
http://www.cbs.marketwatch.com/archive/19991120/news/current/comdexwrap.
htm (Nov. 20, 1999) (stating in which companies are increasingly willing to
use Linux since improvements to the computer software "come to market
extremely quickly").
(158.) Id.
(88.) JAMES WALLACE & JIM ERICKSON, HARD DRIVE: BILL GATES AND
THE MAKING OF THE MICROSOFT EMPIRE 216-17 (John Wiley & Sons 1992).
(6.) Id.
OSS is consistently exposed to rigorous peer review.(163) Raymond
notes in which the critical aspect in the Linux development process is the
timely as well as recurrent disclosure of the program's code.(164) These
releases allow people, in addition referred in order to as hackers,(165) to become able to iron out
the bugs
found in the specific bit of code. Bugs, that are problematic kinks in
a program's supply code, are generally insignificant phenomena which quickly
disappear when 1000s of hackers work to be able to eliminate them.(166)
Moreover, "fixes" are generally very excellent as the hackers
who tend to be operating in a bit of code are generally self-selected.(167) Within other
words, your hackers who're working on a specific difficulty are
intimately familiar from it as well as have some curiosity about completely
eliminating the particular problem.
Due to the open-source community's rigorous and also continuous

peer overview of its code, customers do not have to maintain back until the particular next
release in order to solve a problem with the computer software as the fixes could be
downloaded as soon because they grow for you to be available.(170)
(39.) Id.
Baker was obviously a harbinger associated with difficulties to come. Each As Well As Every
generation has
seen the particular emergence of new technology that will further blurs the particular line between
idea and expression.(24) Distinguishing between suggestions and also expression has
been the point involving consternation for your courts that have been asked to do
so, so that as learned Hand stated, "[n]obody has at any kind of time been in a new situation to fix
that boundary, and nobody ever can."(25)
Microsoft's market power doesn't stem from goods around it does from
our iterative process.... The initial release of a Microsoft item often
fairs poorly within the industry as well as primarily generates fine granularity
feedback coming from consumers. Similarly, Linux has shown which "they" are capable
associated with iterative cycles -- however from an investment of magnitude faster rate. Upon the
flip side, however, our incremental releases tend to be arguably significantly larger
whereas many associated with Linux's incremental releases are usually tantamount in order to pure
bug
fixing.(169)
The open-source movement undermines the building blocks upon which the
traditional, for-profit computer software marketplace is built. Unlike the actual highly
profitable(147) commercial software development method in which depends
upon copyright with regard to its continued viability,(148) OSS isn't intimately
dependent upon copyright protection. It isn't borne out with the same
capital-intensive developmental process, and also will not depend upon
success inside the marketplace to pay its developers. OSS is actually superior
to proprietary software and also immune towards the economic pressures the actual market
exerts on for-profit software program developers. While any result, your information
industry's concentrate can be shifting away from software program development and
towards software program employment. Now the very best computer software is available for
free around the Internet, skill inside employing a new software's code is
rapidly turning into as beneficial because the skill inside authoring it. Consequently,
copyright's traditional role regarding encouraging authors to end up being able to produce
works for your ultimate benefit of society-at-large can be diminished. This
suggests that the debate more than the precise boundary involving copyright
protection for any program's non-literal elements has become moot.
(98.) Clapes et al., supra note 5, at 1503-04.
(146.) RAYMOND, supra note 7, from 45 (quoting FREDERICK P. BROOKS,

THE MYTHICAL MAN-MONTH (1975)).
Linux is ... an enormous patchwork regarding code which defines a rapidly growing
cybernation, the tightly linked community involving those who help make and create use of it.
What unites these coders will be the drive to generate the particular world's greatest
operating system, yet another powerful as compared to any kind of commercial Unix, in a place to
run
in practically virtually any hardware, and infinitely customizable.
(123.) Id. from 701.
(217.) John Lettice, Linux Will Be Outselling Windows 98, Says

Microsoft, THE REGISTER, at
http://www.theregister.co.uk/content/archive/4739.html (Apr. 6, 1999).
A copyright owner offers the capability to reap commercial returns for

his work.(14) the owner's exclusive right to his perform includes the
ability for you to stop the making associated with derivative works.(15) The copyright owner
can sue the particular maker of an unauthorized derivative function with regard to infringement of
the original.(16) "[I]n order to become able to qualify for a separate copyright
as any derivative function ... the additional make a difference injected inside a prior work
... must constitute greater than any minimal contribution."(17)
(143.) Discover FERGUSON, supra note 42, in 107-08.
(133.) Discover Karjala, supra note 26, from 526-27.
(82.) Id. in 107-08. "We possess attemptedto construct systems whose

complexity overwhelms us, simply because there can be certainly often a tradeoff between
simplicity and also performance." LEVY, supra note 62, in 81.
(223.) Pc Assocs. Int'l v. Altai, Inc., 982 F.2d 693,

705 (1992).
(86.) FERGUSON, supra note 42, in 280-81.
(147.) FERGUSON, supra note 42, from 107.
probably the actual most vibrant part of the particular computing spectrum -- the portable devices
and
information appliances which are required for you to proliferate much more widely
than the personal computer.... This kind of may end up being the firefight to set code within the
brains associated with little mobile devices, exactly where no-one cares in regards to the operating
system. And Also here Windows 2000 and also its lesser Spin-offs, for example Windows CE,
right now appear for you to be they will are not more likely to play a big role.
Microsoft Windows will become the market normal "not because
there's anything particularly fantastic with regards to Windows as a product

-- but, such as driving around the right aspect with the street, it has become the
standard that individuals just about all assume...."(89) Microsoft Windows features achieved
its position as it can be relatively user-friendly, low-priced software
that runs "equally well in many fighting hardware
platforms."(90) Although various other applications could carry out individual
tasks a lot much better than Microsoft Windows, it is unlikely that they are
capable involving executing as many tasks, allow alone carry out all of them with such a
low cost.(91) in addition, when software achieves any certain
"critical mass" regarding users, the speed together with which usually it pervades the
market increases.(92) Throughout other words, if the vast majority of individuals are
using a particular program, like Phrase with regard to Windows, for example, then it
is likely which people who wish to discuss along with you documents along with all of them will use
compatible software as well.
(198.) Brian E. Tapich, Startups: the Open-Source Company Model

Has VCs Baffled, RED HERRING MAG. (Feb. 1999), obtainable at
http://www.redherring.com /mag/issue63/news-freeware7.html. See, e.g.,
Leonard, supra note 181 (discussing Red Hat's hiring of
Linux's "primary developers" and in addition the implications with regard to the
open-source movement).
The cost a program garners with market ultimately depends upon its
value being an economic tool.(71) That as a result follows that will "[t]he
only viable strategy [for computer software developers] would always be to set prices
according to the value a new consumer areas about the information."(72)
(184.) Gomulkiewicz, supra note 34, from 186.
(106.) Id. from 1248.
OSS effectively describes each any developmental method and also its
resulting product.(153) As the process, OSS describes iterative, communal
software development conducted through your Internet. the fundamental premise
behind your OSS movement is often that the actual traditional, closed proprietary
software production method yields a new product that is inferior in order to that
produced utilizing open-source.(154) the basic concept powering open up supply is
very simple:
Your èxpression in the idea' inside a computer software pc plan may end up being the manner
by which the actual plan operates, controls, as well as regulates the computer in
receiving, assembling, calculating, retaining, correlating, along with producing
useful details possibly on a screen, in the print-out, as well as through audio
communication.... The Actual conclusion is actually thus inescapable that the detailed
construction with the ... program can be section of your expression, not the actual idea, of
in which program.(110)
(107.) Id. in 1236.
(4.) see Marci A. Hamilton & Ted Sabety, Personal Computer Science
Concepts in Copyright Cases: The Particular Path to a Coherent Law, 10 HARV. J.L.
& TECH. 240, 250 (1997) (explaining literal and also non-literal
copying).
(32.) Lemley, supra note 28, in 1244-45.
(188.) RAYMOND, supra note 7, with 141-42.
As its name implies, the source code of open-source software

("OSS") is freely available to anyone wishing to improve or
alter it.(149) Accordingly, the particular quantity of individuals operating on improving
the OSS from any on one occasion is overwhelmingly greater than with any
traditional for-profit business for example Microsoft.(150) Bob Young,
President regarding RedHat, certainly 1 of the actual largest OSS commercial distributors,
believes that will the potency of the particular open-source method results from
having your help of 100,000 software developers via the
Internet.(151) He additionally affirms which the application developers are
engineers via reputable organizations such as NASA, Boeing, GE, and
MIT.(152)
(232.) Clapes et al., supra note 5, in 1509.
Altruism,(195) however, isn't the sole motivating factor driving

OSS. You will find legitimate business reasons to employ along with participate in
the open-source development process.(196) For-profit organizations have
begun for you to derive revenue from OSS.(197) the most popular approach pertaining to a
company to make funds via OSS is to "build an installed base
through collaborative development and also giveaways of every release; emerge
as your overseer in the platform, typically armed with most the visionary who
invented the particular technology; [and] offer a new jazzed-up commercial model and
services."(198) Furthermore, programmers which set up themselves
as visionaries may in addition be in the position to be able to profit. for example, the
Australian programmers who developed your Netscape add-on had been able to
price their own services accordingly.
(215.) Linux has already been expanding inside popularity throughout non-PC markets.
For example, Linux can be popular in
(216.) Bobko, supra note 186, with 87. Notice in addition Mike Kuniavsky,
It's the actual User, Stupid, SENDMAIL.NET at
http://sendmail.net/?feed=interviewkuniavsky (Jan. 20, 2000) (explaining
why the actual open-source neighborhood can be having problems attaining mindshare
with individual PC users); Rooney, supra note 209, in twenty (citing an
industry analyst who says that Linux's popularity will develop as
third-party enterprise applications begin punching the market).
(149.) John R. Quain, are You Ready with regard to Linux?, FAST COMPANY,
Jan.-Feb. 2000, with 268. anyone who could have access for the World wide web can
download as well as tinker with Linux code simply because there are no licensing fees
for seeking at, adapting, as well as fixing your code. Id. with 270. Linux will be a
paradigm for that distributed collaboration model associated with software
development. Id.
(117.) Hamilton & Sabety, supra note 4.
(44.) for the objective of this discussion, "software" is

used to spell out "[i]nformation goods, that we define as goods
capable regarding becoming distributed within the digital form." Carl Shapiro & Hal R. Varian,
Versioning: the Smart Method to always be able to Offer Information,
HARV. BUS. REV., Nov.-Dec. 1998, with 106-07.
(18.) Id. from 3-12.
I. COPYRIGHT, SOFTWARE, AND THE CURRENT DEBATE

The 2nd portion of this informative article consists involving 3 parts. Portion A
describes the particular open-source development process along with explains why OSS is
superior for you to commercially developed software. Component B outlines the particular two
premises upon that the particular commercial software marketplace is built and
examines why these premises do not necessarily affect OSS. part C discusses
OSS' implications in copyright law.
(130.) Id. with 706-11.
(191.) RAYMOND, supra note 7, with 64 (stating that will hackers seek
"the intangible reward associated with their particular ego satisfaction and reputation
among some other hackers"). Raymond in inclusion has romantically analogized the
hackers' pursuit associated with prestige inside their neighborhood to the Native
American tribes of the Pacific Northwest who would erect totem poles as
advertisements of their particular tribe's prosperity. McHugh, supra note 170,
at 99. Pertaining To an in-depth analysis with the hacker culture, see RAYMOND,
supra note 7, at 79-135. Raymond describes the actual hacker culture as a
"girl culture" in which your members' social status is
determined by simply what they give away. "Keep in your current mind in which [hackers]
have been, for your many part, coding for years, and do not see
programming itself as burdensome, or perhaps as work." Chris DiBona et al.,
Introduction in order to OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 13
(Chris DiBona et al. eds., 1999).
Licenses would be the principal means simply by that software developers

leverage your commercial viability regarding their proprietary software.(66)
Licensing allows the developer to always be able to tailor current software for
individual customers without having further capital outlay; it provides you the
developer using a low-cost approach simply by which usually softwares economic potential
is maximized.(67)
Whelan prevailed in their suit against Jaslow for copyright

infringement.(106) Conducting its analysis of the idea/expression
dichotomy at the highest degree of abstraction, the actual Third Circuit held
that "the purpose or operate of a utilitarian function will be the
works idea, along with every little thing which is not really required to in which purpose or
function will be section of the particular expression with the idea."(107) In
Whelan, your court narrowly defined your unprotectable concept as the

"efficient organization of your dental laboratory."(108) A
program built to effectuate that end has been protectable
"expression" because "there are a variety of program
structures via which in turn that idea could be expressed."(109)
Advocates of the narrow camp praised computer Associates since it

curbed the expansive interpretation with the "idea/expression"
dichotomy set forth inside Whelan,(133) and many courts possess adopted the
Second Circuit's lead.(134) Proponents with the narrow camp prefer
the analysis set forth in Pc Associates since they will fear
Whelan's over-broad protection affords an author "a
patent-like monopoly around the program's functionality -- about what the
program does," that will efficiently stifles innovation.(135)
(68.) Thurow, supra note 64, from 97.
(63.) "Ask a new software program company what it regards as its most
valuable asset and the solution is likely to be able to be òur source
code.'" Stephen H. Wildstrom, Freeware? Whats Never To Like?
Bus. WK., Jan. 11, 1999, with 26. Notice also, Mark A. Haynes, Commentary:
Black Holes associated with Innovation within the software Arts, 14 BERKELEY TECH. L.J.
567, 568-69 (1999) (arguing in which software innovation is impeded because
developers use copyright for you to protect their software, forcing other
developers in order to constantly reinvent your wheel).
(74.) see FERGUSON, supra note 42, at 107-08.
(62.) see id. at 5 n.6. Professor Iansiti furthermore states,

"[r]ules associated with thumb with regard to programmer productivity in the industry
averaged more than a new project typically ranged coming from between 41039 lines of
code per day." Id. some analysts, however, think that "even
today, virtually no model can estimate the particular correct cost of [developing]
software with any degree of certainty." LEON S. LEVY, TAMING THE
TIGER: SOFTWARE ENGINEERING AND SOFTWARE ECONOMICS 99 (Springer-Verlag
1987). Levy states, "[w]e may obtain a rough estimate of the number of
program cost by assuming any programmer productivity charge of 2,500 to
5,000 lines [of code] per staff-year along with calculating that will [a program
consisting of] 36,000 lines will consider in between 7.2 and 14.4 staffyears
with any resultant price of $360,000 in order to $720,000." Id.
Used in the broadest sense, "supportability" encompasses

such things as getting a developers post-sale support,(76) the actual software
stability, along with its compatibility with additional programs.(77) and although
the software program "functionality" will be important, long-term success
depends upon its "supportability." Since entrepreneur as well as Silicon
Valley veteran Dr. Charles Ferguson points out:
(121.) Id.
The "broad" look at copyright protection is a complete lot more correct

than the actual "narrow" view. In spite of criticism, the actual Third
Circuit's selection inside Whelan is conceptually much more accurate than

Computer Associates as it protects a pc program inside toto. As
Professor Karjala factors out, a pc program's composition and
architecture aren't created for aesthetic purposes; around the contrary,
"[a] certain plan can be chosen simply because ... it'll best optimize
intended program operations below the actual provided constraints."(222) The
Second Circuit contends that will "a computer program's ultimate
function or even purpose is the composite result of interacting subroutines
... [and] each subroutine is itself a program, and thus, might always be said to
have its ìdea.'" This is tantamount to deteriorating an
impressionist painting into its individual brushstrokes and also choosing
which among individuals brushstrokes may become the imaginative "kernel" associated with the
art.(223) The Actual narrow approach employed by the 2nd Circuit completely
overlooks the particular undeniable fact that your program's architecture and also structure
are the actual developer's means for you to fix a specific engineering
problem.(224) The Actual answer embodied in a program's higher amounts of
abstraction will become the hardest aspect regarding programming along with therefore
the nearly all worthy associated with protection.(225)
The scope associated with copyright protection regarding computer programs reflects a
variety involving economic considerations. the chief aim of copyright law is
to offer an economic incentive for imaginative efforts.(1) the principal
tool by simply which in turn copyright promotes authors' imaginative efforts is the
grant involving exclusive legal rights for their works to get a limited period of
time.(2)
(178.) Your Linux code "kernel" may always be the coronary heart in the Linux
operating system. Linux can be "the code that connects directly to the
computer's hardware." Computer Software applications tend to be layered about top
of the `kernel.' Andrew Leonard, I Ran Linux -- Along With Lived,
NEWSWEEK, Jan. 18, 1999, with 62. Robert young underscores the
kernel's importance; "[w]hile your kernel, overseen by
Torvalds, is actually just a little section of Linux, it is like the center associated with the
universe around that the entire galaxy revolves." YOUNG & ROHM,
supra note 40, at 116.
(78.) FERGUSON, supra note 42, at 107-08.
With the emergence involving open-source computer software ("OSS"), some

of your debate over copyright protection has taken a new focus. Although
OSS depends upon copyright protection regarding its continued existence, the
economic incentives of OSS aren't the particular conventional economic incentives
assumed through copyright law because they truly do not really arise out of your monopoly of
the copyrighted material. As the result, copyright law plays a diminished
role within OSS.(7)
Charles Babcock, Does Windows 2000 Miss the Revolution? ZDNET, at
http://www.zdnet.corn/zdnn/stories/news/0,4586,2437600,00.html (Feb. 15,

2000) (predicting in which Linux will become a lot more popular as more
third-party applications grow in order to be available). Regarding portable devices in
which memory is the primary constraint, Linux will become the OS associated with choice. TiVo,
a computer/television hybrid that will utilizes a hard drive for you to store programs so
that the actual viewer may watch all of them from virtually any time, chose Linux as its OS. Linux
was selected because the OS due to always be able to its "flexibility ... size,
scalability and bug-free nature." David Penn, Tux Plus TV Equals
TiVo, INDUSTRY BRIEFS, at
http://www2.linuxjournal.com/cgi-bin/frames.pl/articles /briefs/004.html
(Aug. 26, 1999).
(45.) Id.
(226.) Karjala, supra note 7, from 993-94.
Throughout the technology sector, power over an industry-wide normal is a license

to always be able to print money.... If an individual control the standard, then you've advance
knowledge involving how it will evolve and probably the particular deepest knowledge involving
how
it works. A Person can consequently develop the earliest and best items that
depend upon it, although other folks are reduced to always be able to attempting to clone you,
follow
powering you, or even serve minor niche markets.(86)
(80.) Throughout this context, a new "malleable" program is a whose
architecture is actually simply adaptable for you to new programs, environments and
systems. see FERGUSON, supra note 42, in 108.
As discussed above, OSS eliminates voids in innovation as it

reaches into various places since the open-source neighborhood will
develop solutions for you to problems as they arise. Generally, your solutions
are incredibly effective along with comprehensive as the problem-solvers
are self-selected and can observe how all the elements interrelate.
Moreover, industry will encourage people in order to supply options to
problems as they arise, along with do this in an efficient manner. Pertaining To example,
if there can be a widespread issue having a particular piece of software,
there will be incentive with regard to users of this software in order to find a solution. The
software's customers will allocate resources for you to look with regard to a solution
according towards the severity with the problem. Additionally, as with the case
of Netscape and also the Australian programmers, outside groups are
encouraged to be able to solve the problem his or her solutions and also skills
increase in worth after they possess set up on his or her own as experts in
the field.
(185.) Heffan, supra note 29, with 1509 n. 137. Richard Stallman sent
an e-mail for you to Ira Heffan where he reported, "We have got sent letters
demanding compliance [with the actual GPL's terms], repeatedly the year
I'd estimate. We get by absolutely no means had to sue." Id.
(205.) Tapich, supra note 198. The Particular identical program using maintenance
and support costs $79.95. Your comparable Microsoft products expense $96.82
and $329.90 respectively. Potter, supra note 197.
(50.) Id.
(141.) Karjala, supra note 26, with 527-28.
Market supportability drives a commercial software's success

and it truly is abundant inside OSS.(207) Accordingly, OSS will likely become
the industry standard throughout many markets and this will improve the
momentum in the software's general acceptance.(208) open source
software is readily supportable because of to the option of the actual source
code to end up being able to anyone which wants to use or boost it.(209) Pertaining To this reason,
OSS
is endlessly customizable.(210) Pertaining To example, a new company in which purchases
proprietary software program acquires a system which no-one within the company can
modify, and in addition the organization must depend on any single vendor to always be able to
support the
system.(211) Your enterprise offers little, if any, control over the actual software
or its upkeep, and also "changes to people systems serve only the
business plans with the vendors, as opposed to the firms which acquire from
them."(212) Since the result, the actual purchaser must operate the particular risk of relying
solely upon the vendor pertaining to support.(213) a business utilizing OSS, however,
can help to make whatever changes it wishes to the software program without relying on
the vendor.(214)
(54.) Shapiro & Varian, supra note 44, at 108.
(114.) see Haynes, supra note 63, in 567-68. This kind of overprotection of
computer programs creates a monopoly as well as "is leading to
anti-competitive effects" that will stifle technological advancement in

the software applications industry. Hamilton & Sabety, supra note 4, at
242.
[W]riting the clever bit of code that works is but one thing; designing
something which supports a long-lasting enterprise will be quite another.... In
supplement to end up being able to code which works, you'll need documentation, help functions,
error
handling, multi-platform support, as well as multiple languages. Anyone also need an
underlying architecture which allows you to end up being able to definitely add and also change
features,
purchase and integrate external software program components, along with permits other
computer software vendors to make many speak to yours, add customized
widgets to it, or even embed your product inside something larger involving their
own.(78)
(128.) Id.
D. Economics and also Computer Software Development
(159.) AT&T developed UNIX in the 1970's in an try to

develop any single os ("OS") that could run all
the numerous computers AT&T used. YOUNG & ROHM, supra note 40, at
61. Furthermore, AT&T located within the 1970's, and it can be even now tree
today, that obtaining proprietary OS's to become able to talk to 1 another is not
easy. Id. In the particular time, AT&T had been trying to obtain the minicomputers
of the dozen various vendors in order to perform together. Id.
PATRICK K. BOBKO, B.S., Usa Air Force Academy, M.A.,

University of South Carolina, J.D., The Actual George Washington University. He
is an Associate along with Richards, Watson & Gershon, Los Angeles, CA. He
would like by method of thanking Professor Roger Schechter with regard to his sage advice, with
this article as well as otherwise, along with Mr. Ryan Bobko and also Dr. Peter Bobko for
their patience, assistance, and perspective. Your views and also opinions
expressed herein are those regarding the writer as well as are not automatically the
views as well as opinions regarding Richards, Watson & Gershon.
(59.) Alex Pham, Windows 2000 Debuts Today, BOSTON GLOBE, Feb. 17,
2000, in C4.
(208.) the term "industry standard" is used loosely in

this context because no-one normal edition of Linux exists at any kind of one
time. Commercial OSS distributors just like Red Hat standardize the actual software
they sell; however, there can be certainly absolutely no standard between the various
distributors. "While each and every brand name will be based on Linux, each one has a
slight variation in which will make programs incompatible using the different
operating systems. That Will indicates computer software developers must spend added time
and funds if they desire their computer software to perform upon more than one Linux
brand." Id. To End Up Being Able To resolve this problem, the particular leading Linux developers
have formed the actual Linux Standards Base that will produce a pair of standard
operating rules. Id.
The Copyright Act(8) protects just about all "original functions of

authorship [when they are] fixed in any tangible medium of
expression."(9) Copyright protection provides an author limited,

exclusive legal rights over his work,(10) as well as confers on him certain
enumerated privileges(11) that will extend to a work's literal and
"non-literal" aspects.(12) Your "non-literal" aspects
of copyrighted functions which have been afforded protection are usually "the
plot outline of a movie, the actual structure, sequence and organization regarding a
computer program, or perhaps the actual `total concept and feel' of a song, a
television show, or possibly a greeting card."(13)
(47.) Id. in 107.
(138.) Id.
The short cycle-time in between new iterations of OSS not only

produces qualitatively superior software, but additionally creates software
adapted into a wide assortment of environments.(171) When the actual open-source
community arrives across a problem, or even an fascinating or perhaps useful feature in
proprietary software, an OSS equivalent can be generally quickly for you to follow. This
poses a new problem, however, regarding proprietary software program developers that spend
enormous levels of funds to boost their particular software only to discover
that Linux has incorporated the specified new features directly into its code
base. As the result, your window involving commercial viability pertaining to proprietary
software offers vastly decreased for the duration of time it takes with regard to an
open-source equivalent to appear.(172) once the new proprietary feature
is released towards the open-source code base, it truly is swept up in a
fast-forward Darwinist method which ultimately creates a product
superior to its long-forgotten ancestor.
An elegant,(79) malleable(80) design is essential since the

programs fifth as well as sixth release will likely be twenty occasions larger
than its first.(81) The Particular later versions of the application invariably become
"ferociously complex ... simply because they want to always support
previous versions while adding new capabilities."(82) Because
improving these products is a tough task, there's a high premium
placed on a well-conceived, malleable underlying architecture.(83)
However, in which in turn the softwares underlying architecture is difficult to
disentangle, in Dr. Fergusons words, "the long term comes, and
you're truly screwed."(84)
(181.) Gomulkiewicz, supra note 34, from 186. "The GPL,

conceived by Richard Stallman and the free Computer Software Foundation, is the
bedrock upon which usually huge amounts of totally free software holders firm.... the GPL
ensures the underlying supply code to a software package will be
freely available to the general public." Andrew Leonard, Who
Controls free Software?, SALON MAG., accessible at
http://www.salon.com/tech/feature/1999/11/18/red_hat/index.html (Nov.
18, 1999).
(105.) Id.
(186.) Notice usually Patrick K. Bobko, Linux And Also General Public
Licenses: Could Copyright Keep "Open Source" software Free?, 28
AIPLA Q.J. 81 (2000) (arguing which GPLs tend to be enforceable non-exclusive

licenses).
(111.) see usually Miller, supra note 24, in 997-98 (defending

the Third Circuits choice within Whelan).
"Microsoft competes by establishing and controlling industry

standards...."(87) Indeed, Microsoft's motto is "We Set
the Standard," and furthermore the company's battle plan offers often been
targeted toward establishing your market regular in the markets in
which it competes.(88) When e-commerce strategy is surely an art form,
Microsoft Windows is its piece de resistance.
(55.) RAYMOND, supra note 7, with 29. Within his influential work,
"Raymond dubbed the traditional, secretive, proprietary process
that has taken root in this economic landscape, the
"cathedral" method associated with computer software development. Daniel P. Dern,
Open Sesame, COMPUTERWORLD, offered by http://www.computerworld.com/
cwi/story/0,1199,NAV47_STO31758,00.html (July 13, 1998) (interviewing
Eric Raymond). Your "cathedral" metaphor arises from Raymonds
experience using commercially developed proprietary software. Id. He
states, "the most critical computer software (operating methods and also really
large tools such as the Emacs programming editor) needed being built like
cathedrals, carefully crafted by individual wizards as well as small bands of
mages working in splendid isolation, without beta being released before
its time." Id. the enormous up-front costs connected with software
development and the short commercial life span of the resulting software
have combined for you to outcome in the developmental method where "you have
a extremely closed, centralized, managed style involving development." Id. A
number of large companies get embraced Raymonds OS model including
Netscape, IBM, Sun Microsystems, and Oracle. Nikki Goth Itoi, Freeware,
RED HERRING MAG., offered at http://
www.redherring.com/mag/issue63/news-freeware.html (Feb. 1999). in fact,
Netscapes decision for you to embrace an open-source strategy had been directly
attributable for you to Raymonds essay "The Cathedral as well as the Bazaar."
Id. Nearly All recently, Apple Personal Computer adopted Raymonds model as well. See
Greta Mittner, does Apple really get open Source?, RED HEARING MAG.,
available at http://
www.redherring.com/insider/1999/0316/news-apple.html (Mar. 16, 1999).
Part I informed examines the cost-effective first step toward the

commercial software program market and also its reliance upon copyright law,
highlighting the existing debate with regards to the appropriate level of
software protection for any program's non-literal elements. part II
examines OSS as well as its impact on the info industries with
particular emphasis about its freedom from industry pressures and also technical
superiority more than its proprietary counterparts. This kind of article concludes
that although some copyright protection is necessary in order to perpetuate the
open-source movement, OSS' emergence features substantially mooted the
current debate over the right amount of protection pertaining to a
program's non-literal elements.
(197.) Itoi, supra note 55. Itoi identifies 4 classes regarding revenue
derived coming from open source software. Id. The very first is actually comprised associated with
fees
generated by means of your assistance of open source software products. Id. Red
Hat is the principal practitioner involving e-commerce model. Id. the second
type associated with revenue stream is for companies to use OSS as a "loss
leader, giving out software so as to situation on his or her own better for
sales involving their own closed software." Id. The Particular third class involves
"the hardware organization embrac[ing] open-source computer software in order to
acquire far better interface equipment faster and also for any smaller
investment," id., which class of revenue stream can be often
utilized by hardware companies "for that software is an expense
rather when in comparison for you to a revenue generator." id. Lastly several companies can
make cash promoting the actual supporting accessories such as books as well as manuals
that the particular open-source community lacks. Id.; see in addition Shawn W. Potter,
Opening up To open Source, six RICH. J.L. & TECH. 24, [paragraph] 30
(Spring 2000), offered at http://www.richmond.edu/
jolt/v6i5/article3.html (listing seven conceptual OSS company models
originally devised by Eric S. Raymond).
The Third Circuit's choice potentially protects the broad

range associated with software program elements, also it epitomizes "broad"
copyright protection.
(156.) Inside an internal memorandum, Microsoft software developers

admitted the Linux OS along with Web Navigator combination ran thirty
to forty percent faster compared to comparable Microsoft software, Windows
NT as well as Internet Explorer. Charles Mann, programs for the People, TECH.
REV., Jan.-Feb. 1999, from 41.
(162.) Id. "Open-source software undergoes rigorous peer

review and contains great reliability. without peer review, software
reliability suffers. This kind of fact inside itself might be almost all you need to
marginalize closed-source commercial development." Id. (emphasis
added).
(145.) Id. at 528 n.37 (quoting Pamela Samuelson et al., A

Manifesto Regarding the actual Legal Protection involving Pc Programs, 94
COLUM. L. REV. 2308, 2353 (1994)).
(26.) Dennis S. Karjala, Copyright Protection regarding computer Program

Structure, 64 BROOK. L. REV. 519, 521 (1998).
(231.) Haynes, supra note 63, from 568.
(199.) RAYMOND, supra note 7, at 141.
The holy grail regarding higher technology will be achieving the actual "industry
standard." the "industry standard" may always be the lingua franca of your certain business or
perhaps market, and also creating it areas the
developer within an nearly impregnable market position.(85) Dr. Ferguson
observed the critical importance of establishing this "industry
standard:"
Arguably, each along with every amount of abstraction past the supply code
inextricably intermingles "procedures, processes, systems, methods
of operation, or their particular components."(145) a personal computer business adage
mirrors this opinion: "Show me the [code] as well as conceal the [data
structures], along with I shall continue to be mystified. Show me your current [data
structures], along with I won't generally require your own [code]; it'll be
obvious."(146) However, following the reasoning set forth throughout the
Computer Associates decision, these components tend to be generally
unprotectable.
Id. (citations omitted).
(116.) Id. in 569.
the [Computer Associates] court seems to not get completely grasped that will all
applications tend to be published to accomplish, as efficiently as possible inside the
constraints imposed through the hardware, additional software, and economics, the
perform the plan is intended in order to perform. program structure is not
chosen whimsically, nor can it be chosen with regard to aesthetic causes unrelated to
function. A New certain composition can be chosen as the programmer believes
in which it'll greatest optimize intended program operations below the actual given
constraints.... Inside short, this really is an engineering problem.(144)
(11.) 17 U.S.C. [sections] 106. Inside your absence of the limiting
doctrine, the copyright owner maintains exclusive rights to reproduce,
distribute copies, display, as well as prepare derivative functions according to the
copyrighted material. Id. Violation of those exclusive legal rights is

copyright infringement, and the copyright owner could seek an injunction
and actual or statutory damages. Jeffrey M. Gott, Note, Lotus
Development Corporation v. Borland International: The Particular United States
Court associated with Appeals for your First Circuit Requires the Step Backward pertaining to the
Copyright Protection involving computer Programs, 30 CREICHTON L. REV. 1349,
1359 (1997).
(64.) Lester C. Thurow, Needed: A brand New System associated with Intellectual
Property Rights, HARV. BUS. REV., Sept.-Oct. 1997, in 95, 96.
(14.) Twentieth Century music Corp. v. Aiken, 422 U.S. 151,156

(1975) ("Creative tasks are to become encouraged along with rewarded, but
private motivation must ultimately serve the cause for promoting broad
public option of literature, music, as well as one other arts.").
(38.) Steven R. Englund, Idea, Process, or even Protected Expression?:

Determining the actual Scope regarding Copyright Protection with the Construction of
Computer Programs, 88 MICH. L. REV. 866, 869 (1990) (defining the
competing interests as "the efficient use associated with resources such as
memory room along with computer, programmer, along with user time").
C. Offering Software
(134.) See, e.g., Autoskill Inc. v. National Educ. Assistance Sys.,

Inc., 994 F.2d 1476, 1491-98 (10th Cir. 1993) (applying the
"abstraction, filtration, comparison" test to a computer

program in which taught reading skills).
(144.) Karjala, supra note 26, in 528 (emphasis added) (footnotes

omitted).
(27.) Revenue through Usa software program firms were estimated in $141
billion inside 1999. Robert J. Samuelson, The Particular Mystifying Microsoft Case,
WASH. POST, Apr. 12, 2000, in A27. The Particular personal computer marketplace is undergoing
tremendous growth, fueled in big part from the Internet. Id.
Business-to-business commerce about the Web is expected to hit $1.3
trillion simply by 2003. This growth may have to become met by simply expansion among
both hardware along with software program industries. P.J. Huffstutter, The Actual Cutting
Edge: Putting E-commerce directly into Words, Global group Utilizing New Technical
Language for you to Bridge Gap on Net, L.A. TIMES, Mar. 29, 1999, from C1.
(167.) Id. with 41-43.
(84.) FERGUSON, supra note 42, in 108.
Although what your law states concerning infringing, non-literal aspects of

knowledge items is actually unsettled, courts possess generally applied 1 of
two analytical frameworks for you to parse protected non-literal elements from
the unprotected ones. the a couple of approaches differ in the scope of
protection they will afford computer software and can be separated into a pair of camps,
"broad" and "narrow."(98)
The open-source movement provides undercut the business enterprise model upon which
the majority involving proprietary software developers operate. Unlike its
proprietary brother, industry will not straight assess OSS'
economic worth inside relation to the buy price which shoppers tend to be willing to pay
for it.(199) Rather, since it can be free, OSS' economic value is
measurable inside relation to its use value.(200) the commercial value is
gradually shifting from writing as well as developing code and toward its
worth as a tool.(201) for example, the multi-billion dollar industry(202)
has developed around Linux.(203) several companies get entered the
market to supply tech support team in order to Linux users.(204) Regarding instance,
Red Hat Software, a Linux developer, now sells consulting services,
which can customize Linux to each and also every user's requirements as well as offer
technical assistance.(205) Hardware companies such as VA Research, sell
computers in which are already pre-configured to perform Linux. This allows
companies to obtain much better interface tools along with much less upfront investment
because these people steer clear of significant licensing expenditures.(206) the widespread thread
among these firms is always that the program itself is no longer the
salable commodity. Instead, the software's worth is derived from
the employment, service and maintenance required.
(87.) Id. with 296.
(56.) see RAYMOND, supra note 7, in 141-42. Note, however, that

Raymond considers the two premises to be flawed. Id. in 141-44. He
rejects the extremely first assumption, that will developer moment is paid for by sale
value, simply because ninety-five percent involving software just isn't intended for sale;
it is actually developed pertaining to in-house use only. Id. He rejects the particular second
assumption, in which the purchase price will be depending on worth as an economic tool,
because even when a certain little bit of software features a high utilization value, the
price will drop for you to practically zero in the event the vendor goes out of enterprise or even the
product line is discontinued. Id. in 144-45.
(126.) Id. at 701.
The GPL is the device by which the particular open-source community

"perpetuates [its] particular software development and distribution
model."(181) the open-source community makes use of the actual GPL throughout largely the
same manner by which commercial software producers use licensing
agreements.(182) for example, customers associated with software certified below the GNU project's
GPL must agree "(1) not to set up proprietary
rights in the software; (2) to offer supply code in order to any person whom they
give the item code; (3) to incorporate inside the software recognize involving the
applicability in the ... GPL; [and] (4) to accept the software without
warranties regarding any kind."(183) In case any GPL will not include certain
principles, the software can not be considered OSS.(184) Although the
enforceability in the GNU project's GPL has never been tested,(185)
it would likely be found to be enforceable.(186) Indeed, your open-source
movement could not are present without having enforceable, non-exclusive
licenses.(187)
(20.) 101 U.S. 99 (1880).
The court promulgated the three-step "abstraction, filtration,

comparison" test to look for the extent to which usually copyright law
protects some sort regarding computer program's non-literal elements.(130) The Actual Second
Circuit declined to follow Whelan since it found out that that case
"relie[d] as well heavily about metaphysical distinctions along with d[id] not
place sufficient emphasis in practical considerations."(131)
Due simply towards the competition in the computer software market, the
complexity regarding personal computer software, and additionally the law's ill preparedness to
deal with all the preceding a couple of factors, "the state of copyright law
with respect for you to computer software features been in flux since the particular early
1980's and it is even now certainly not settled."(3) Throughout particular, the particular law
has yet in order to correctly identify the actual non-literal aspects of
copyright-protected pc programs, along with that failure provides precipitated
a spirited debate.(4) Members inside the debate may typically be
classified according to the scope associated with protection they think copyright
affords a computer program's non-literal elements.(5) Both
academics along with sector contributors possess noted the significance of the
debate over the actual scope associated with copyright protection for software; in fact,
some commentators possess stated that its outcome would figure out the
future in the international computer software industry.(6)
(19.) 17 U.S.C. [sections] 102(b) (1994).
(52.) Id. This specific phenomenon is unique for the info industry.
Id. Usually, "[t]he creator is most likely to become able to make illegal copies up to the point where
the marginal price of 1 much more copy equals its expected marginal
revenue." Landes & Posner, supra note 1, with 327.
(37.) Miller, supra note 24, from 984 (comparing "the

communicative precision needed of the personal computer programmer" with
"the discipline which a poet must achieve to become able to convey the complex
message inside your confines of your tightly constrained meter," and
the programmer with the "composer that must perform within the actual limited
ranges regarding musical instruments or the human voice"); see also Clapes
et al., supra note 5, in 1497 (quoting FREDERICK P. BROOKS, THE MYTHICAL
MAN-MONTH 7-8 (1975)), (stating that the "programmer, such as the
poet, works simply slightly removed via pure thought-stuff. He builds his
castle in the air, from air, creating through exertion with the imagination.
Few media of creation are generally consequently flexible, so an simple job to polish as well as
rework, so
readily capable of realizing grand conceptual structures.").
(169.) Id. (noting the "they" referred in order to in

Microsoft's memo may always be the open-source community and that the memo
voices concern more than the method the cycle moment in between OSS releases will be a
fraction of times that Microsoft requires having its releases)
(emphasis added).
Open-source computer software subverts the inspiration upon which usually the
commercial software program industry is built. Commercial software development
is a secretive, protracted, capital-intensive process. Since the result,
for-profit software program developers rely upon copyright to become able to protect their
investments since it affords all of them sufficient "lead time"
over your competitors to become able to recoup first development costs.(232) Stated
simply, classic for-profit computer software development relies upon
copyright for its continued viability.
As programs turn out in order to be accessible and programs become more robust,
open-source software applications are more most likely to grow in popularity. This will be
technically
superior plus more readily supportable as compared to its competitors. This specific makes
it the prime candidate in order to furthermore become an sector normal inside markets
other when compared with commercial and private computers.(215) Linux's chief
liability, along with maybe the simply real aspect preventing it through gaining
widespread acceptance, is actually its lack of applications.(216) Indeed, there
are reviews in which Linux has previously been outselling MicrosoftWindows 98 inside key
retail channels.(217) According to no much less than one estimate, Linux will surpass the
Windows os throughout approximately 3 years.(218) As
Linux's popularity increases, the particular interest in programs will
increase correspondingly, and hackers will ultimately develop
open-source programs in order to rival the commercially popular
versions.(219)
2. OSS' value just isn't measured in relation to its price, but

rather inside its use worth as becoming a tool
(43.) see Lemley, supra note 28, with 1244-45.
A. Introduction
(35.) Minassian, supra note 34, from 573.
It may always be worth noting that the Pc Associates' test fails to

recognize, or protect, a software's architecture from higher levels
of abstraction.(141) in some other words, it is not necessarily possible in order to distill a
"golden nugget" of protectable expression through a
program's general structure and also architecture.(142) Since discussed
above, Dr. Ferguson notes which one of the most crucial aspect of a successful
program, and the the majority of challenging to develop, will be its subcutaneous architecture.(143)
Professor Karjala echoed these sentiments in his
article when he said:

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(221.) Twentieth Century music Corp. v. Aiken, 422 U.S. 151,156

(1.) "Striking the correct balance among access [to an

(171.) Itoi, supra note 55.

On another hand, your "narrow" view, espoused in

movement, even if it is actually conceptually inaccurate. Based on its

(163.) Itoi, supra note 55.

(17.) NIMMER & NIMMER, supra note 1, [sections] 3.03[A], at

(66.) "[T]he copyright grant and also its constellation of

(99.) Hamilton & Sabety, supra note 4, with 250.

(153.) Your label "open-source" came out of a meeting

(203.) by the summer of 1999, more than twenty companies offered

(220.) Gomulkiewicz, supra note 34, at 186.

(222.) Karjala, supra note 26, in 528.

(119.) Id. at 712.

C. Open-Source Software Program and the Implications pertaining to Copyright Law

(36.) Marco Iansiti & Jonathan West, Technologies Integration:

(227.) Haynes, supra note 63, in 572.

As discussed above, the expenses related along with marshalling the

(92.) see id. with 141.

In particular, programmers are curious about protecting their

Computer applications possess when again challenged the actual courts to

Science can be ultimately an Open Up Supply enterprise. Your scientific method

where scientists speak involving replication, Open Up Supply programmers talk of

(165.) Pertaining To an interesting discussion involving how a "hacker"

a Hacker, in http://www.tuxedo.org/-esr/faqs/hacker-howto.html (last

(176.) RAYMOND, supra note 7, in 41. Within addition, Raymond notes,

1. Developer Period Is Actually Paid Out regarding through Offering Software

(71.) Shapiro & Varian, supra note 44, in 109.

(49.) Id. at 108.

(150.) Michael Stutz, Freed software Winning Support, Generating Waves,

The "abstraction, filtration, comparison" test requires

(195.) RAYMOND, supra note 7, at 64.

(108.) Id. at 1240.

(77.) This can easily be usually known as programs

(213.) Id. Additionally, companies like the concept that

(157.) Itoi, supra note 55.

B. Introduction in order to Copyright Law

(95.) Id. in 250; see additionally Apple Computer, Inc. v. Franklin

(164.) RAYMOND, supra note 7, with 38.

(173.) Dem, supra note 55.

(136.) E.g., Haynes, supra note 63, from 572.

(101.) Id. from 1225.

II. OPEN-SOURCE SOFTWARE

(69.) Rivette & Kline, supra note 67, in 55-56.

The long-standing debate more than the correct scope of copyright

(110.) Id. in 1239.

(218.) Landley, supra note 160.

Pragmatically, the "broad" view can be appropriate since it

Additionally, your fixed development costs regarding producing software

(166.) RAYMOND, supra note 7, with 41. Raymond labeled this

(228.) computer Assocs. Int'l, 982 F.2d in 706.

(46.) Id. from 108.

break down the allegedly infringed plan in to its constituent structural

(112.) See, e.g., Michael S. Oberman & Alan Behr, Protecting

(9.) 17 U.S.C. [sections] 102(a). However, section 102(b) areas a

(61.) Marco Iansiti, Microsoft Corporation: Workplace business Unit,

(15.) Notice 17 U.S.C. [sections] 106. "A `derivative work'

transformed as well as adapted." Id. [sections] 101. "A derivative

(174.) FERGUSON, supra note 42, in 109.

(118.) 982 F.2d 693 (2d Cir. 1992).

Furthermore, supporters involving narrow copyright protection also believe

(42.) CHARLES H. FERGUSON, HIGH STOKES, NO PRISONERS: A