Open-source software and the demise of copyright

I. COPYRIGHT, SOFTWARE, AND THE CURRENT DEBATE

A. Introduction

The chief goal of copyright law is to provide an economic incentive for creative efforts.(1) The principal tool by which copyright promotes authors’ creative efforts is the grant of exclusive rights to their works for a limited period of time.(2)

Due in part to the competition in the software market, the complexity of computer software, and the law’s ill preparedness to deal with the preceding two factors, “the state of copyright law with respect to computer software has been in flux since the early 1980’s and is still not settled.”(3) In particular, the law has yet to accurately identify the non-literal aspects of copyright-protected computer programs, and that failure has precipitated a spirited debate.(4) Participants in the debate can generally be classified according to the scope of protection they believe copyright affords a computer program’s non-literal elements.(5) Both academics and industry participants have noted the importance of the debate over the scope of copyright protection for software

With the emergence of open-source software (“OSS”), some of the debate over copyright protection has taken a new focus. Although OSS depends upon copyright protection for its continued existence, the economic incentives of OSS are not the traditional economic incentives assumed by copyright law because they do not arise out of a monopoly of the copyrighted material. As a result, copyright law plays a diminished role in OSS.(7)

Part I of this article examines the economic foundation of the commercial software industry and its reliance upon copyright law, highlighting the current debate concerning the appropriate level of software protection for a program’s non-literal elements. Part II examines OSS and its impact on the information industries with particular emphasis on its freedom from market pressures and technical superiority over its proprietary counterparts. This article concludes that although some copyright protection is required to perpetuate the open-source movement, OSS’ emergence has substantially mooted the current debate over the appropriate level of protection for a program’s non-literal elements.

B. Introduction to Copyright Law

The Copyright Act(8) protects all “original works of authorship [when they are] fixed in any tangible medium of expression.”(9) Copyright protection provides an author limited, exclusive rights over his work,(10) and confers on him certain enumerated privileges(11) that extend to a work’s literal and “non-literal” aspects.(12) The “non-literal” aspects of copyrighted works that have been afforded protection are “the plot outline of a movie, the structure, sequence and organization of a computer program, or even the ‘total concept and feel’ of a song, a television show, or a greeting card.”(13)

A copyright owner has the ability to reap commercial rewards for his work.(14) The owner’s exclusive right to his work includes the ability to prevent the making of derivative works.(15) A copyright owner can sue the maker of an unauthorized derivative work for infringement of the original.(16) “[I]n order to qualify for a separate copyright as a derivative work … the additional matter injected in a prior work … must constitute more than a minimal contribution.”(17)

Generally, the contribution to the existing, copyrighted work must render the derivative work distinguishable in a meaningful manner to avoid infringement.(18)

Copyright does not protect ideas, but only the author’s original expression of those ideas.(19) For example, in the seminal case of Baker v. Selden,(20) the Supreme Court denied the author of a copyrighted book exclusive rights to the system of bookkeeping that his text explained.(21) In repudiating the author’s claim, the Court distinguished protectable expression from unprotectable ideas.(22) The Court noted, “whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practise and use the art itself which he has described and illustrated therein.”(23)

Baker was a harbinger of difficulties to come. Each generation has seen the emergence of new technology that further blurs the line between idea and expression.(24) Distinguishing between ideas and expression has been a point of consternation for the courts that have been asked to do so, and as Learned Hand stated, “[n]obody has ever been able to fix that boundary, and nobody ever can.”(25)

Computer programs have once again challenged the courts to distinguish between idea and expression, confirming Hand’s pessimism about the ability to find a solution to the problem.(26) The ubiquity of computers and the Internet make the practical implications of the legal debate and consequences attendant to its resolution greater than ever before.(27)

C. Selling Software

Traditional copyright law was ill equipped to accommodate the sale of computer software at the dawn of the Information Age.(28) Software developers in the late 1960’s and early 1970’s were consultants who generally worked for individual clients and wrote specialized software for their particular clients’ needs.(29) Typically, the programmer would retain the rights to his work and permit the client to use the program under a licensing agreement.(30) The terms of each license were usually negotiated individually with each client and contained provisions that required the client to keep the software confidential and limited use of the software.(31) Licenses thereby enabled the programmer to widely distribute his work while protecting his proprietary interests.(32)

In particular, programmers are interested in protecting their software’s “source code,” the literary work to which copyright protection formally adheres.(33) Source code describes “the collection of instructions a computer programmer writes [which] tells a computer what to do.”(34) The essence of any program can be understood by anyone who has the technical wherewithal to reverse-engineer the object code, a process that converts it into subject code.(35) Because software has a relatively short commercial life span, the code should remain confidential and proprietary so that the author’s program can retain its value.(36)

A computer program’s code, like a painting or a poem, is the product of the programmer’s ingenuity, skill, and creativity.(37) It reflects a careful balancing of various competing interests, as well as consideration of the resulting program’s size, elegance, and ease of use.(38) Accordingly, “[t]here are as many ways to approach the task of writing a program … as there are programmers.”(39) A program’s value resides in how it balances the various concerns and ultimately how well it meets the user’s needs.(40) Computer programs are the end result of an intensive, meticulous process, and “the products in question [are] derive[d] entirely from the creative energies of authors practicing a craft.”(41) The process of “[c]ommercial software design is … a rigorous, capital-intensive activity,”(42) and developers rely on copyright to protect their investment in the resulting product.(43)

D. Economics and Software Development

Software,(44) unlike other goods, has “a distinctive cost structure: producing the first copy [of a program] is often very expensive, but producing subsequent copies is very cheap…. The fixed costs of producing information are large, in other words, but the variable costs of reproducing it are small.”(45) Because competition tends to drive prices to the level of marginal costs, information goods can easily turn into low-priced commodities, making it impossible for companies to recoup their up-front investments and eventually bringing about their demise.(46)

Additionally, the fixed development costs for producing software are sunk costs that cannot be recovered if the product is commercially unsuccessful.(47) Generally, unsuccessful software has very little, if any, tangible salvage value.(48) Alternatively, the variable costs associated with software development remain relatively constant no matter how many copies of the software are made.(49) Unlike many other goods, the cost of producing an additional unit of software is almost negligible.(50) The unique cost structure attendant to the production of software “offers vast economies of scale: the more you produce, the lower your average cost of production.”(51) The lions share of software development costs are incurred up front, and the developer does not incur additional costs regardless of the number of copies made.(52)

The half-life of commercial software is measured in months, and a developer must establish and protect a market niche if he hopes to recoup his development costs(53) If a companys software does not achieve a unique place in the market, it is forced to compete on the price, and if forced to “reduce its prices to a level near its marginal production costs … that company will never be able to recoup its big up-front investments. It will, in time, face economic doom.”(54) The large start-up costs inherent in software development and the ease with which competitors can copy software have forced companies to zealously guard their software source code.(55)

The traditional model of software development is based upon two premises: 1) developer time is paid for by selling the software

1. Developer Time Is Paid for by Selling Software

As discussed above, the costs associated with marshalling the resources necessary to develop mass-market software are substantial.(58) Recent press releases in the wake of Microsoft launch of Windows 2000 are illustrative of the staggering costs associated with software development. One source estimated that Windows 2000 cost the company $1 billion to produce and took approximately 5000 developers nearly four years to create,(59) The end product contained 30 million lines of code.(60) Indeed, the software that has come to be Microsofts flagship product, Microsoft Office, took over five years to develop.(61) Microsoft noted, however, that its cost per line of code developed was significantly lower than the industry average, which was $126 in 1989.(62)

Companies like Microsoft jealously protect their programs “source code” because of the enormous development costs associated with developing proprietary software.(63) Copyright, therefore, is vital for protecting developers investments because “[i]f their intellectual property can be copied easily, they will not be able to generate either wealth for their owners or high wages for their employees.”(64) In order to protect the fruits of their investment, software owners will only sell the customer a legally-protected “sealed block of bits that [the user] cannot examine, modify, or evolve.”(65)

Licenses are the principal means by which software developers leverage the commercial viability of their proprietary software.(66) Licensing allows the developer to tailor existing software for individual customers without additional capital outlay

For example, Texas Instruments’ aggressive licensing program earned the company more than $1.5 billion in fees, and in some years, the licensing fees exceeded the companys operating income.(68) IBMs aggressive licensing program boosted their royalties 3300% since 1990–from $30 million to almost $1 billion today–a sum “that represents one-ninth of IBMs annual pretax profits.”(69) The money goes straight to IBMs bottom line, which means that “IBM would have to sell roughly $20 billion worth of additional products each year, or an amount equal to one-fourth [of] its worldwide sales” to match the revenue generated from licenses.(70)

2. The price software will fetch at market is proportional to its value as an economic tool.

The price a program garners at market ultimately depends upon its value as an economic tool.(71) It therefore follows that “[t]he only viable strategy [for software developers] is to set prices according to the value a customer places on the information.”(72)

The value a customer places on software depends upon a panoply of factors,(73) some of which are highly subjective. Of the elements that affect a program value, two inter-related factors rise to the fore: its “supportability”(74) and whether it is the “industry standard.”(75)

Used in the broadest sense, “supportability” encompasses such things as a developers post-sale support,(76) the software stability, and its compatibility with other programs.(77) And although the software “functionality” is important, long-term success depends upon its “supportability.” As entrepreneur and Silicon Valley veteran Dr. Charles Ferguson points out:

Writing a clever piece of code that works is one thing
something that can support a long-lasting business is quite another…. In
addition to code that works, you need documentation, help functions, error
handling, multi-platform support, and multiple languages. You also need an
underlying architecture that allows you to add and change features,
purchase and integrate external software components, and allows other
software vendors to make their products talk to yours, add customized
widgets to it, or embed your product inside something larger of their
own.(78)

An elegant,(79) malleable(80) design is important because the programs fifth or sixth release will probably be twenty times larger than its first.(81) The later versions of the software invariably become “ferociously complicated … because they must continue to support previous versions while adding new capabilities.”(82) Because improving these products is a difficult task, there is a high premium placed on a well-conceived, malleable underlying architecture.(83) However, where the softwares underlying architecture is difficult to disentangle, in Dr. Fergusons words, “the future comes, and you’re really screwed.”(84)

The holy grail of high technology is achieving the “industry standard.” The “industry standard” is the lingua franca of a particular industry or market, and establishing it places the developer in an almost impregnable market position.(85) Dr. Ferguson observed the critical importance of establishing this “industry standard:”

In the technology sector, control of an industry-wide standard is a license
to print money…. If you control the standard, then you have advance
knowledge of how it will evolve and probably the deepest knowledge of how
it works. You can therefore develop the earliest and best products that
depend upon it, while others are reduced to trying to clone you, follow
behind you, or serve minor niche markets.(86)

“Microsoft competes by establishing and controlling industry standards….”(87) Indeed, Microsoft’s motto is “We Set the Standard,” and the company’s battle plan has always been targeted toward establishing the industry standard in the markets in which it competes.(88) If this business strategy is an art form, Microsoft Windows is its piece de resistance.

Microsoft Windows is the industry standard “not because there’s anything particularly wonderful about Windows as a product — but, like driving on the right side of the street, it has become the standard that we all assume….”(89) Microsoft Windows has achieved its position because it is relatively user-friendly, low-priced software that runs “equally well on many competing hardware platforms.”(90) Although other programs may perform individual tasks better than Microsoft Windows, it is unlikely that they are capable of performing as many tasks, let alone perform them at such a low cost.(91) In addition, once software achieves a certain “critical mass” of users, the speed with which it pervades the market increases.(92) In other words, if the majority of people are using a particular program, like Word for Windows, for example, then it is likely that those who wish to share documents with them will use compatible software as well.

E. The Current Debate

As with other creative works of authorship, copyrights protect both the literal text of software as well as the non-literal essence of its expression.(93) Literal copying is as easily identified in the knowledge product context as in any other.(94) However, unlike other works, non-literal infringement of knowledge products is much harder to identify.(95) The difficulty springs primarily from a problem endemic to knowledge products distinguishing unprotectable ideas from their protectable expression. Fixing this boundary is of tremendous import to the information industry, which watches the ebb and flow of this debate with nervous anticipation as it plays out in the courts.(96) At stake is the ability to protect knowledge, claim it as ones property, and reap the rewards that follow.(97)

Although the law regarding infringing, non-literal aspects of knowledge products is unsettled, courts have generally applied one of two analytical frameworks to parse protected non-literal elements from the unprotected ones. The two approaches differ in the scope of protection they afford software and can be separated into two camps, “broad” and “narrow.”(98)

1. The broad camp

This view provides generous protection to a knowledge products non-literal aspects, bringing such elements as the programs structure, sequence, and organization within its scope.(99) Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc.,(100) is the standard-bearer for this camp, and represents the position that copyright affords substantial protection to the non-literal structure of computer programs.

In Whelan, Rand Jaslow contracted with Elaine Whelan to write a computer program for managing Jaslows dental laboratory.(101) Whelan wrote a program for Jaslow and secured copyright protection for it.(102) Realizing there was a market for the program, Jaslow began to develop a program similar to Whelans but in a different, more accessible computer language.(103) After approximately two years, Jaslow severed his business relationship with Whelan and sold his version of the program to other dental laboratories.(104) Whelan then filed suit, claiming that Jaslow infringed upon her copyright.(105)

Whelan prevailed in her suit against Jaslow for copyright infringement.(106) Conducting its analysis of the idea/expression dichotomy at the highest level of abstraction, the Third Circuit held that “the purpose or function of a utilitarian work would be the works idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea.”(107) In Whelan, the court narrowly defined the unprotectable idea as the “efficient organization of a dental laboratory.”(108) A program designed to effectuate that end was protectable “expression” because “there are a variety of program structures through which that idea can be expressed.”(109)

Relying upon Learned Hands analysis in Baker v. Selden, the court fleshed out the line between idea and expression, outlining what has come to be known as the “structure, sequence, organization” test:

The ‘expression of the idea’ in a software computer program is the manner
in which the program operates, controls, and regulates the computer in
receiving, assembling, calculating, retaining, correlating, and producing
useful information either on a screen, in a print-out, or by audio
communication…. The conclusion is thus inescapable that the detailed
structure of the … program is part of the expression, not the idea, of
that program.(110)

The Third Circuit’s decision potentially protects a broad range of software elements, and it epitomizes “broad” copyright protection.

Some commentators, including Professor Arthur Miller,(111) and software developers who have achieved substantial popularity in the marketplace,(112) support the broad protections afforded by the Third Circuits decision in Whelan.(113) Others, however, have been critical of Whelan because they believe its rationale over-protects computer programs, thereby impeding innovation.(114) For example, Professor Mark Haynes states that over-broad copyright and patent protection, like that provided in Whelan, blocks innovation in the software arts.(115) Innovation is slowed and resources are wasted because developers are constantly being forced to reinvent the wheel in order to avoid accusations of infringement.(116) Critical of this, the “narrow” camp prefers a more precise application of copyright protection, believing it to be more conducive to innovation and advancement. This narrow view of copyright protection is set forth below.

2. The narrow camp

The narrow camp confines the scope of copyright protection by excising the programs non-copyrightable elements before determining its overall copyright protection.(117) The Second Circuits decision in Computer Associates International v. Altai, Inc.,(118) is the leading case for the narrow camp, and it explicitly rejected the approach taken in Whelan.(119)

Computer Associates involved a program called CASCHEDULER which was a job-scheduling program developed and sold by Computer Associates (“CA”).(120) CA-SCHEDULER contained a sub-program called ADAPTER that had no use independent of CA-SCHEDULER.(121) However, ADAPTER was extremely valuable because it enabled CA-SCHEDULER to run on different types of computers.(122)

Altai developed its own scheduling program with the help of a former CA employee who copied “approximately 30% of [the] code from CAs ADAPTER program.”(123) Upon learning of the employees actions, Altai re-wrote the portions of its program that had been copied from ADAPTER.(124) CA learned of the copying and brought copyright and trade secret misappropriation claims against Altai.(125)

By the time the case made its way to the Second Circuit, the issues had been narrowed to copyright infringement and trade secret misappropriation claims.(126) The courts copyright infringement analysis(127) focused primarily on whether the two companies’ programs were substantially similar to one another.(128) Specifically, the court asked whether the re-written portion of Altai’s program infringed upon the non-literal structure of CA’s copyrighted ADAPTER program.(129)

The court promulgated a three-step “abstraction, filtration, comparison” test to determine the extent to which copyright law protects a computer program’s non-literal elements.(130) The Second Circuit declined to follow Whelan because it found that that case “relie[d] too heavily on metaphysical distinctions and d[id] not place enough emphasis on practical considerations.”(131)

The “abstraction, filtration, comparison” test requires that a court
break down the allegedly infringed program into its constituent structural
parts. Then, by examining each of these parts for such things as
incorporated ideas, expression that is necessarily incidental to those
ideas, and elements that are taken from the public domain, a court would
then be able to sift out all non-protectable material. Left with a kernel,
or possible kernels, of creative expression after following this process of
elimination, the court’s last step would be to compare this material with
the structure of an allegedly infringing program. The result of this
comparison will determine whether the protectable elements of the program
at issue are substantially similar so as to warrant a finding of
infringement.(132)

Advocates of the narrow camp praised Computer Associates because it curbed the expansive interpretation of the “idea/expression” dichotomy set forth in Whelan,(133) and most courts have followed the Second Circuit’s lead.(134) Proponents of the narrow camp prefer the analysis set forth in Computer Associates because they fear Whelan’s over-broad protection affords an author “a patent-like monopoly on the program’s functionality — on what the program does,” that effectively stifles innovation.(135)

Furthermore, supporters of narrow copyright protection also believe that the defensive perimeter Whelan erects around the program’s central “idea” leads to inefficiency and waste within the information industry.(136) For example, under the “broad” interpretation, a wide range of non-literal elements are protected and the opportunities for a competing software developer to infringe upon the expression embodied in the first work expand accordingly. Mindful of the potential for infringement, subsequent developers are “constantly going over old ground, carefully avoiding access to the code of their competitors,”(137) in an attempt to reinvent the process, which wastes resources and slows progress.(138)

Microsoft’s Windows is the most obvious example of the 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 chokes the competition within the PC market.(139) Microsoft exerts control over the PC market because the outer boundary of intellectual territory within its dominion expands through the creation of derivative works.(140) If, however, Microsoft’s programs were afforded protection similar to that provided in Whelan, it is debatable whether there would be any non-Microsoft innovation at all.

It is worth noting that the Computer Associates’ test fails to recognize, or protect, a software’s architecture at higher levels of abstraction.(141) In other words, it is impossible to distill a “golden nugget” of protectable expression from a program’s overall structure and architecture.(142) As discussed above, Dr. Ferguson notes that the most important aspect of a successful program, and the most difficult to develop, is its subcutaneous architecture.(143) Professor Karjala echoed these sentiments in his article when he said:

The [Computer Associates] court seems not to have fully grasped that all
programs are written to accomplish, as efficiently as possible within the
constraints imposed by the hardware, other software, and economics, the
function the program is intended to perform. Program structure is not
chosen whimsically, nor is it chosen for aesthetic reasons unrelated to
function. A particular structure is chosen because the programmer believes
that it will best optimize intended program operations under the given
constraints…. In short, this is an engineering problem.(144)

Arguably, every level of abstraction beyond the source code inextricably intermingles “procedures, processes, systems, methods of operation, or their components.”(145) A computer industry adage mirrors this opinion: “Show me your [code] and conceal your [data structures], and I shall continue to be mystified. Show me your [data structures], and I won’t usually need your [code]

II. OPEN-SOURCE SOFTWARE

The open-source movement undermines the foundation upon which the traditional, for-profit software industry is built. Unlike the highly profitable(147) commercial software development process that depends upon copyright for its continued viability,(148) OSS is not intimately dependent upon copyright protection. It is not borne out of the same capital-intensive developmental process, and does not depend upon success in the marketplace to compensate its developers. OSS is superior to proprietary software and immune to the economic pressures the market exerts on for-profit software developers. As a result, the information industry’s focus is shifting away from software development and towards software employment. Now that the best software is available for free on the Internet, skill in employing a software’s code is rapidly becoming as valuable as the skill in authoring it. Consequently, copyright’s traditional role of encouraging authors to produce works for the ultimate benefit of society-at-large is diminished. This suggests that the debate over the precise boundary of copyright protection for a program’s non-literal elements is now moot.

The second section of this article consists of three parts. Part A describes the open-source development process and explains why OSS is superior to commercially developed software. Part B outlines the two premises upon which the commercial software industry is built and examines why these premises do not apply to OSS. Part C discusses OSS’ implications on copyright law.

A. Open Source Software

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 number of people working on improving the OSS at any one time is overwhelmingly greater than at any traditional for-profit company such as Microsoft.(150) Bob Young, President of RedHat, one of the largest OSS commercial distributors, believes that the strength of the open-source process results from having the assistance of 100,000 software developers via the Internet.(151) He also affirms that the software developers are engineers from reputable organizations such as NASA, Boeing, GE, and MIT.(152)

OSS properly describes both a developmental process and its resulting product.(153) As a process, OSS describes iterative, communal software development conducted via the Internet. The fundamental premise behind the OSS movement is that the traditional, closed proprietary software production process yields a product that is inferior to that produced using open-source.(154) The basic idea behind open source is very simple:

When programmers on the Internet can read, redistribute, and modify the
source for a piece of software, it evolves. People improve it, people adapt
it, people fix bugs. And this can happen at a speed that, if one is used to
the slow pace of conventional software development, seems astonishing.
The open-source community has learned that this rapid evolutionary
process produces better software than the traditional closed model, in
which only a few programmers can see source [code] and everybody else must
blindly use an opaque block of bits.(155)

The software resulting from the open-source method is generally superior than that developed using proprietary methods(156) because the open-source code is constantly reviewed, tested, and debugged faster and more intensively.(157) This enables it to quickly adapt to virtually any environment.(158)

Linux is the crown jewel of the open-source movement. It is the freely available clone of the Unix operating system(159) and is the operating system on which most corporate and Internet mainframes run.(160) Technologically, Linux obscures all other varieties of software similar to Unix and its superiority stems from continuous, rigorous peer review.(161) For-profit software companies cannot, and will not, submit their code to peer review because of secrecy concerns surrounding the program’s source code.(162) Accordingly, the reliability and stability of proprietary software has traditionally been awful.

OSS is constantly subjected to rigorous peer review.(163) Raymond notes that a critical aspect of the Linux development process is the timely and recurrent disclosure of a program’s code.(164) These releases allow people, also known as hackers,(165) to iron out the bugs found in a particular bit of code. Bugs, which are problematic kinks in a program’s source code, are insignificant phenomena that quickly disappear when thousands of hackers work to eliminate them.(166) Moreover, “fixes” are generally quite good because the hackers who are working on a piece of code are self-selected.(167) In other words, the hackers who are working on a particular problem are intimately familiar with it and have some interest in completely eliminating the problem.

The open-source process lends itself to debugging on an order unmatchable by proprietary software developers–the result being that OSS tends to evolve much quicker than proprietary software. An internal Microsoft memorandum noted that OSS’ short iterative cycle is a potent competitive weapon in software development.(168) The memorandum observed:

Microsoft’s market power doesn’t stem from products as much as it does from
our iterative process…. The first release of a Microsoft product often
fairs poorly in the market and primarily generates fine granularity
feedback from consumers. Similarly, Linux has shown that “they” are capable
of iterative cycles — but at an order of magnitude faster rate. On the
flip side, however, our incremental releases are arguably much larger
whereas many of Linux’s incremental releases are tantamount to pure bug
fixing.(169)

Due to the open-source community’s rigorous and continuous peer review of its code, users do not have to wait until the next release to solve a problem with the software because the fixes can be downloaded as soon as they become available.(170)

The short cycle-time between new iterations of OSS not only produces qualitatively superior software, but also creates software adapted to a wide variety of environments.(171) Once the open-source community comes across a problem, or an interesting or useful feature in proprietary software, an OSS equivalent is usually soon to follow. This poses a problem, however, for proprietary software developers who spend enormous amounts of money to improve their software only to discover that Linux has incorporated the desired new features into its own code base. As a result, the window of commercial viability for proprietary software has vastly decreased to the length of time it takes for an open-source equivalent to appear.(172) Once the new proprietary feature is introduced to the open-source code base, it is swept up in a fast-forward Darwinist process that ultimately creates a product superior to its long-forgotten ancestor.

The same is not true for proprietary, closed-source software, where programming bugs are an endemic problem and releases are frequently as late as they are disappointing. The traditional development process recognizes the problems and this results in a management style that defines rigid objectives and strives for central controls to find all the bugs and fix them.(173) Debugging large programs takes a Herculean effort because of their tremendous complexity and it is impossible for anyone to retain this complexity without the aid of a software program designed for such a task.(174) For example, “[if] Microsoft changes Windows 98, it can’t easily peek into the source code of Quicken or Word Perfect to see what will happen.”(175) Because proprietary software developers have limited debugging resources, they cannot match the open-source community’s speedy, holistic approach. Consequently, the traditional development process produces software that often disappoints customers who find that the software is not bug free.(176)

Although an OSS author may wish to make his work freely available for review and alteration, the author must prevent others from establishing proprietary interests in their derivative works.(177) Consequently, Linux’s code “kernel”(178) is “copylefted”(179) and distributed under the terms of a General Public License (“GPL”).(180)

The GPL is the tool by which the open-source community “perpetuates [its] particular software development and distribution model.”(181) The open-source community uses the GPL in largely the same manner in which commercial software producers use licensing agreements.(182) For example, users of software licensed under the GNU project’s GPL must agree “(1) not to establish proprietary rights in the software

B. OSS and Its Impact on the Software Industry

The underlying premise of the proprietary software development is that “most developer time is paid for by sale value,” which is “proportional to its development cost … and to its value.”(188) OSS fundamentally alters these values.(189)

1. The hackers who use, develop, and improve OSS are not compensated for their efforts by revenues generated from the software’s sale

The hackers who spend countless hours developing and improving OSS are not compensated for their time by selling the resultant software.(190) Many hackers seek only psychic compensation for their work. There are, however, valid business reasons for participating in the open-source development process.

True to their ethic, gaining respect from their peers in the open-source community is often the hackers’ most prized compensation.(191) Most who use and improve OSS do so with the hope of making a unique and lasting contribution to the body of knowledge or, in hacker terminology, coming up with a “cool” hack.(192) For example, only hours after Netscape had released the code for its Internet browser, a group of Australian programmers “had attached a cryptographic add-on” that enabled Netscape’s program to conduct secure Internet transactions.(193) The Australians “were paid handsomely — but not with money. The programmers … got paid in respect from the rest of the programming community and in the satisfaction of turning out an elegant useful bit of software.”(194)

Altruism,(195) however, is not the sole motivating factor driving OSS. There are legitimate business reasons to employ and participate in the open-source development process.(196) For-profit organizations have begun to derive revenue from OSS.(197) The most popular method for a company to make money from OSS is to “build an installed base through collaborative development and giveaways of each release

2. OSS’ value is not measured in terms of its price, but rather in its use value as a tool

The open-source movement has undercut the business model upon which the majority of proprietary software developers operate. Unlike its proprietary brother, the market does not directly assess OSS’ economic value in terms of the price which consumers are willing to pay for it.(199) Rather, because it is free, OSS’ economic value is measurable in terms of its use value.(200) The commercial value is gradually shifting away from writing and developing code and toward its worth as a tool.(201) For example, a multi-billion dollar industry(202) has developed around Linux.(203) Several companies have entered the market to provide technical support to Linux users.(204) For instance, Red Hat Software, a Linux developer, now sells consulting services, which can customize Linux to each user’s needs as well as offer technical assistance.(205) Hardware companies such as VA Research, sell computers that have been pre-configured to run Linux. This allows companies to obtain better interface tools with less upfront investment because they avoid large licensing expenditures.(206) The common thread among these companies is that the software itself is no longer the salable commodity. Instead, the software’s value is derived from the employment, service and maintenance required.

Market supportability drives a commercial software’s success and it is abundant in OSS.(207) Accordingly, OSS will probably become the industry standard in many markets and this will increase the momentum of the software’s general acceptance.(208) Open source software is readily supportable due to the availability of the source code to anyone who wants to use or improve it.(209) For this reason, OSS is endlessly customizable.(210) For example, a business that purchases proprietary software acquires a system that no one in the company can modify, and the company must rely on a single vendor to service the system.(211) The business has little, if any, control over the software or its upkeep, and “changes to those systems serve only the business plans of the vendors, rather than the companies who buy from them.”(212) As a result, the purchaser must run the risk of relying solely upon the vendor for support.(213) A company using OSS, however, can make whatever changes it wishes to the software without relying on the vendor.(214)

As applications become available and programs become more robust, open-source software is likely to grow in popularity. It is technically superior and more readily supportable than its competitors. This makes it the prime candidate to also become an industry standard in markets other than commercial and personal computers.(215) Linux’s chief liability, and perhaps the only factor preventing it from gaining widespread acceptance, is its lack of applications.(216) Indeed, there are reports that Linux is already outselling MicrosoftWindows 98 in key retail channels.(217) According to one estimate, Linux will surpass the Windows operating system in approximately three years.(218) As Linux’s popularity increases, the demand for applications will increase correspondingly, and hackers will eventually develop open-source applications to rival the commercially popular versions.(219)

C. Open-Source Software and the Implications for Copyright Law

The long-standing debate over the proper scope of copyright protection for a computer program’s non-literal element is moot due to free access to OSS. Nevertheless, copyright law retains an important role in keeping OSS free because Linux’s kernel code is copyrighted and distributed using the GPL. Without copyright protection, “the open source software development model would be nothing more than an honor system.”(220)

Courts should take the benefits of OSS into consideration when evaluating the scope of copyright protection with regard to the non-literal elements of computer programs. Open-source software serves the goal of copyright to “promote broad public availability of literature, music, and the other arts”(221) without the traditional problem of providing incentives for the authors who create those works. Because open-source trumps commercial software in terms of the quality of the product and the efficiency in which it is produced, courts should encourage and perpetuate the open-source movement.

The “broad” view of copyright protection is more correct than the “narrow” view. Despite criticism, the Third Circuit’s decision in Whelan is conceptually more accurate than Computer Associates because it protects a computer program in toto. As Professor Karjala points out, a computer program’s structure and architecture are not designed for aesthetic purposes

Pragmatically, the “broad” view is acceptable because it brings more and more intellectual territory within open-source’s embrace. Whelan’s critics feared its implications for innovation in the information industries,(226) casting a particularly suspicious eye on Microsoft and its ever-expanding empire. Additionally, critics argued that over-broad copyright protection was wasteful because developers were constantly re-inventing the wheel in order to avoid infringing on a competitor’s copyrighted software.(227) Broad copyright protection of OSS obviates these concerns.

As discussed above, OSS eliminates voids in innovation as it reaches into different areas because the open-source community will develop solutions to problems as they arise. Generally, the solutions are extremely efficient and comprehensive because the problem-solvers are self-selected and can see how all the elements interrelate. Moreover, the market will encourage individuals to supply solutions to problems as they arise, and do so in an efficient manner. For example, if there is a widespread problem with a particular piece of software, there is incentive for users of that software to find a solution. The software’s users will allocate resources to find a solution according to the severity of the problem. Additionally, as with the case of Netscape and the Australian programmers, outside groups are encouraged to solve the problem because their services and skills increase in value once they have established themselves as experts in the field.

On the other hand, the “narrow” view, espoused in Computer Associates and defined by the “abstraction, filtration, comparison” test,(228) is equally conducive to the open-source movement, even if it is conceptually inaccurate. According to its proponents, Computer Associates increased the elements of prior programs available for use as building blocks in future ones because it reined in the “broad” protection afforded in Whelan. The decrease in scope of copyright protection allegedly increases both innovation and efficiency because software developers are not forced to re-invent the wheel.(229) The “narrow” view that restricts copyright protection to “a kernel, or possible kernels, of creative expression”(230) aligns itself with the open-source movement because it reduces the pockets of closed code around which hackers must work. Open-source software, coupled with a “narrow” view of copyright, allays any concern that copyright protection is “blocking innovation in the software arts.”(231)

CONCLUSION

Open-source software subverts the foundation upon which the commercial software industry is built. Commercial software development is a secretive, protracted, capital-intensive process. As a result, for-profit software developers rely upon copyright to protect their investments because it affords them sufficient “lead time” over the competition to recoup initial development costs.(232) Stated simply, traditional for-profit software development relies upon copyright for its continued viability.

Accordingly, the precise scope of protection that copyright affords the non-literal aspects of a computer program is hugely important because of the sums at stake, and vigorous debate has ensued on this topic. By operation of market forces, OSS has mooted the debate over the precise nature of copyright protection afforded a computer program’s non-literal aspects. Open-source software is generally superior to its proprietary counterparts and is available for free on the Internet. Aside from its role protecting the code kernel, copyright’s importance to software development has been substantially diminished because OSS uncouples the economic incentives from the creative process.

(1.) “Striking the correct balance between access [to an author’s work] and incentives [for him to create it] is the central problem in copyright law.” William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 326 (1989). Compensating the author, however, is not copyright’s principal aim. As Nimmer states, “[t]he primary purpose of copyright is not to reward the author, but is rather to secure ‘the general benefits derived by the public from the labors of authors.'” 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT, [sections] 1.03[A] (2000).

(2.) U.S. CONST. art. I, [sections] 8, cl. 8.

(3.) Michael Risch, How Can Whelan v. Jaslow and Lotus v. Borland Both Be Right? Reexamining the Economics of Computer Software Reuse, 17 J. MARSHALL J. COMPUTER & INFO. L. 511, 512 (1999).

(4.) See Marci A. Hamilton & Ted Sabety, Computer Science Concepts In Copyright Cases: The Path to a Coherent Law, 10 HARV. J.L. & TECH. 240, 250 (1997) (explaining literal and non-literal copying).

(5.) Anthony L. Clapes et al., Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, 34 UCLA L. REV. 1493, 1505 (1987).

(6.) Id.

(7.) Dennis S. Karjala, Copyright Protection of Computer Documents, Reverse Engineering, and Professor Miller, 19 U. DAYTON L. REV. 975, 978 (1994). See generally ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR (1999).

(8.) 17 U.S.C. [subsections] 101-1332 (1994).

(9.) 17 U.S.C. [sections] 102(a). However, section 102(b) places a limit on this copyright protection: “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C.[sections] 102(b). Congress explicitly extended copyright protection to software with the Computer Software Copyright Act of 1980, Pub. L. No. 96-517, 94 Stat. 3028 (codified as amended at 17 U.S.C. [sections] 117 (1994)). Software need not be stored on a disk to be deemed “fixed in a tangible medium of expression.” MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511,517-19 (9th Cir. 1993) (holding that an unlicensed user infringed on a program’s copyright by turning on a computer, which caused the operating system to be uploaded from the computer’s permanent storage to its random access memory. Although a permanent copy was not generated, “the representation created in RAM was sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated.”).

(10.) It is one of Congress’ explicit powers to establish a system that grants authors a limited monopoly over their work for a period of time. U.S. CONST. art. I, [sections] 8, cl. 8 (“[Congress shall] promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…. “).

(11.) 17 U.S.C. [sections] 106. In the absence of a limiting doctrine, the copyright owner maintains exclusive rights to reproduce, distribute copies, display, or prepare derivative works based on the copyrighted material. Id. Violation of these exclusive rights is copyright infringement, and the copyright owner may seek an injunction and actual or statutory damages. Jeffrey M. Gott, Note, Lotus Development Corporation v. Borland International: The United States Court of Appeals for the First Circuit Takes a Step Backward for the Copyright Protection of Computer Programs, 30 CREICHTON L. REV. 1349, 1359 (1997).

(12.) Mark A. Lemley, The Economics Of Improvement In Intellectual Property Law, 75 TEX. L. REV. 989, 1016 (1997).

(13.) Id.

(14.) Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,156 (1975) (“Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”).

(15.) See 17 U.S.C. [sections] 106. “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed or adapted.” Id. [sections] 101. “A derivative work is translation into a different language or medium.” Landes & Posner, supra note 1, at 353. (16.) Landes & Posner, supra note 1, at 353.

(17.) NIMMER & NIMMER, supra note 1, [sections] 3.03[A], at 3-10.

(18.) Id. at 3-12.

(19.) 17 U.S.C. [sections] 102(b) (1994).

(20.) 101 U.S. 99 (1880).

(21.) Id. at 107.

(22.) Id. at 103-04.

(23.) Id. at 104.

(24.) See Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 HARV. L. REV. 978, 982 (1993). Miller notes that the current debate over copyright and computer programs is yet another step in a debate that has surrounded the development of new technology: “[similar] apprehensions were voiced about photography, motion pictures, sound recordings, radio, television, photocopying, and various modes of telecommunication.” Id. See also Vincent J. Roccia, What’s Fair Is (Not Always) Fair on the Internet, 29 RUTGERS L.J. 155, 163-64 (1997) (“After all, the resilient copyright law has withstood the attack of previous technological ‘evils’ like the photocopier, the video cassette recorder (VCR) and audio recorder … copyright has absorbed these new technologies with a legislative tweak of the Copyright Act or a judicial nod to the Act’s equitable fair use exception.”). Conversely, David Nimmer suggests in Adams and Bits: Of Jewish Kings and Copyrights, 71 S. CAL. L. REV. 219, 223 (1998), that the traditional copyright scheme is ill-equipped to deal with the information age, specifically the Internet. Nimmer distinguishes the current technological advances from previous advances on the grounds that the Information Age does not deal with tangible things, but “bits” of information: “For the Interact as a distribution channel deals never with atoms, but only transports bits.” Id. Prophetically, Nimmer notes the difficulty this change presents to copyright: “The copyright industries thus watch in hopeful horror as the revolution unfolds.” Id. at 223-24.

(25.) Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (defining the boundary between “ideas” and “expression” for plays). See also Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (“No principle can be stated as to when an imitator has gone beyond copying the ‘idea’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.”). Although no universal rule exists, the courts have distinguished between “idea” and “expression” in certain areas, and these decisions are akin to compass points in otherwise uncharted territory. For example, in United States v. Hamilton, 583 F.2d 448, 452 (9th Cir. 1978), the Ninth Circuit held that maps are protectable, while in Mazer v. Stein, 347 U.S. 201,218 (1954), the Supreme Court held that the functional aspects of a lamp are not.

(26.) Dennis S. Karjala, Copyright Protection of Computer Program Structure, 64 BROOK. L. REV. 519, 521 (1998).

(27.) Sales by United States software firms were estimated at $141 billion in 1999. Robert J. Samuelson, The Mystifying Microsoft Case, WASH. POST, Apr. 12, 2000, at A27. The computer industry is undergoing tremendous growth, fueled in large part by the Internet. Id. Business-to-business commerce on the Internet is expected to hit $1.3 trillion by 2003. This growth will have to be met by expansion among both hardware and software industries. P.J. Huffstutter, The Cutting Edge: Putting E-commerce into Words, Global Group Using New Technical Language to Bridge Gap on Net, L.A. TIMES, Mar. 29, 1999, at C1.

(28.) Mark A. Lemley, Intellectual Property and Shrinkwrap Licenses, 68 S. CAL. L. REV. 1239, 1242-43 (1995).

(29.) Ira V. Heffan, Copyleft: Licensing Collaborative Works in the Digital Age, 49 STAN. L. REV. 1487, 1494 (1997).

(30.) See id. (discussing the programmers’ “unclear” copyright and patent fights in the software they had created).

(31.) Heffan, supra note 29, at 1494-95. Developers prefer the licensing of software to its outfight sale because licensing “negates the doctrine of first sale” and allows for the precise definition of warranty terms. Id. at 1494 n.37 (citing William H. Neukom & Robert W. Gomulkiewicz, Licensing Rights to Computer Software, in TECHNOLOGY LICENSING & LITIGATION 778 (PLI Pats., Copyrights, Trademarks & Literary Prop. Course Handbook Series No. G4-3897, 1993)).

(32.) Lemley, supra note 28, at 1244-45.

(33.) Miller, supra note 24, at 983.

(34.) Robert W. Gomulkiewicz, How Copyleft Uses License Rights to Succeed in the Open Source Software Revolution and the Implications for Article 2B, 36 Hous. L. REV. 179, 180 (1999). “Source code is ‘[h]uman-readable program statements written in a high-level or assembly language.'” Id. at 180 n.4 (quoting COMPUTER DICTIONARY 337, 443 (Microsoft Press 1991)), and “is understandable to anyone proficient in that language.” Id. at 181. The computer processes the source code through a compiler which translates it into “object code,” a combination of O’s and l’s otherwise incomprehensible to humans. Apik Minassian, The Death of Copyright: Enforceability of Shrinkwrap Licensing Agreements, 45 UCLA L. REV. 569, 573 n. 12 (1997).

(35.) Minassian, supra note 34, at 573.

(36.) Marco Iansiti & Jonathan West, Technology Integration: Turning Great Research Into Great Products, HARV. BUS. REV., May-June 1997, at 69-70. Professor Iansiti comments on the ever-increasing competitiveness in the Information Age:

Product life cycles have shortened dramatically, forcing companies to
develop and commercialize new technologies faster than ever. In the
semiconductor industry, for example, product life cycles shrank by 25% in
the 1980’s alone. At the same time, uncertainty in the marketplace has
soared. Consider the computer industry, in which market requirements change
extremely rapidly and customers have a seemingly insatiable thirst for
performance. By the mid-1990’s, few could predict with any confidence how
the Internet, the price of DRAM chips, or the emergence of Java as an
Internet scripting language would shape customers’ demands even six months
into the future.

Id. See generally Marco Iansiti & Alan MacCormack, Developing Products on Internet Time, HARV. BUS. REV., Sept.-Oct. 1997, at 108 (discussing the requirements for flexible production processes because of the vaporous nature of e-markets and the fleeting opportunities to capture them).

(37.) Miller, supra note 24, at 984 (comparing “the communicative precision required of a computer programmer” with “the discipline that a poet must achieve to convey a complex message within the confines of a tightly constrained meter,” and the programmer with the “composer who must work within the limited ranges of musical instruments or the human voice”)

(38.) Steven R. Englund, Idea, Process, or Protected Expression?: Determining the Scope of Copyright Protection of the Structure of Computer Programs, 88 MICH. L. REV. 866, 869 (1990) (defining the competing interests as “the efficient use of resources such as memory space and computer, programmer, and user time”).

(39.) Id.

(40.) Id. Superior technology, however, is not 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, the software must be better at meeting the user’s needs than beating the competition’s product. Robert Young, CEO of Red Hat notes, “[a]s anyone who has spent more than a couple of years in [the software] industry knows, the better technology seldom wins in the marketplace unless that technology represents greater benefits to the user than the alternatives.” Id.

(41.) Clapes et al., supra note 5, at 1506.

(42.) CHARLES H. FERGUSON, HIGH STOKES, NO PRISONERS: A WINNER’S TALE OF GREED AND GLORY IN THE INTERNET WARS 107 (Times Business 1999).

(43.) See Lemley, supra note 28, at 1244-45.

(44.) For the purpose of this discussion, “software” is used to describe “[i]nformation goods, which we define as goods capable of being distributed in the digital form.” Carl Shapiro & Hal R. Varian, Versioning: The Smart Way to Sell Information, HARV. BUS. REV., Nov.-Dec. 1998, at 106-07.

(45.) Id.

(46.) Id. at 108.

(47.) Id. at 107.

(48.) Id.

(49.) Id. at 108.

(50.) Id.

(51.) Id.

(52.) Id. This phenomenon is unique to the information industry. Id. Usually, “[t]he creator will make copies up to the point where the marginal cost of one more copy equals its expected marginal revenue.” Landes & Posner, supra note 1, at 327.

(53.) See Clapes et al., supra note 5, at 1509 (noting that a rational actor will only enter the software market if he has sufficient “lead time” over the competition to recoup his development costs). Copyright is the tool that provides the rational actor with the requisite “lead time” and thereby encourages developers to bring new products to market. Id.

(54.) Shapiro & Varian, supra note 44, at 108.

(55.) RAYMOND, supra note 7, at 29. In his influential work, “Raymond dubbed the traditional, secretive, proprietary process that has taken root on this economic landscape, the “cathedral” method of software development. Daniel P. Dern, Open Sesame, COMPUTERWORLD, available at http://www.computerworld.com/ cwi/story/0,1199,NAV47_STO31758,00.html (July 13, 1998) (interviewing Eric Raymond). The “cathedral” metaphor comes from Raymonds experience with commercially developed proprietary software. Id. He states, “the most important software (operating systems and really large tools like the Emacs programming editor) needed to be built like cathedrals, carefully crafted by individual wizards or small bands of mages working in splendid isolation, with no beta to be released before its time.” Id. The enormous up-front costs associated with software development and the short commercial life span of the resulting software have combined to result in a developmental process where “you have a very closed, centralized, controlled style of development.” Id. A number of large companies have embraced Raymonds OS model including Netscape, IBM, Sun Microsystems, and Oracle. Nikki Goth Itoi, Freeware, RED HERRING MAG., available at http:// www.redherring.com/mag/issue63/news-freeware.html (Feb. 1999). In fact, Netscapes decision to embrace an open-source strategy was directly attributable to Raymonds essay “The Cathedral and the Bazaar.” Id. Most recently, Apple 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).

(56.) See RAYMOND, supra note 7, at 141-42. Note, however, that Raymond considers the two premises to be flawed. Id. at 141-44. He rejects the first assumption, that developer time is paid for by sale value, because ninety-five percent of software is not intended for sale

(57.) See Eric S. Raymond, The Evangelists, RED HERRING MAG., available at http://www.redherring.com/mag/issue63/news-freeware2.html (Feb. 1999).

(58.) See Shapiro & Varian, supra note 44, at 107.

(59.) Alex Pham, Windows 2000 Debuts Today, BOSTON GLOBE, Feb. 17, 2000, at C4.

(60.) Id.

(61.) Marco Iansiti, Microsoft Corporation: Office Business Unit, HARV. BUS. REV., May-June 1994 (faculty sample), at 1. Although the total cost of developing Microsoft Office is, at best, an estimate, the research and development expense for the project between June 1987 and June 1989 was $218 million. Id.

(62.) See id. at 5 n.6. Professor Iansiti also states, “[r]ules of thumb for programmer productivity in the industry averaged over a project typically ranged from between 5 to 10 lines of code per day.” Id. Some analysts, however, believe that “even today, almost no model can estimate the true 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 can get a rough estimate of the range of program cost by assuming a programmer productivity rate of 2,500 to 5,000 lines [of code] per staff-year and calculating that [a program consisting of] 36,000 lines will take between 7.2 and 14.4 staffyears with a resultant cost of $360,000 to $720,000.” Id.

(63.) “Ask a software company what it regards as its most valuable asset and the answer will probably be ‘our source code.'” Stephen H. Wildstrom, Freeware? Whats Not To Like? Bus. WK., Jan. 11, 1999, at 26. See also, Mark A. Haynes, Commentary: Black Holes of Innovation in the Software Arts, 14 BERKELEY TECH. L.J. 567, 568-69 (1999) (arguing that software innovation is impeded because developers use copyright to protect their software, forcing other developers to constantly reinvent the wheel).

(64.) Lester C. Thurow, Needed: A New System of Intellectual Property Rights, HARV. BUS. REV., Sept.-Oct. 1997, at 95, 96.

(65.) Raymond, supra note 57.

(66.) “[T]he copyright grant and its constellation of exclusive rights, together with the ability to license customers and others to share in a limited way in those rights, form the basis of the software industry as we know it today.” Clapes et al., supra note 5, at 1501 (emphasis added). Indeed, some commentators have noted that the current system makes the license itself a valuable commodity because the copyright owner can allocate the distribution and use of his work to a specific market or customer. As Robert W. Gomulkiewicz, a senior corporate attorney for Microsoft, points out, “[t]he use of mass market licenses enables the publisher to tailor a collection of rights to particular types of uses, so that the license, rather than merely the underlying software, becomes the product acquired by the user.” Robert W. Gomulkiewicz, The License Is the Product: Comments on the Promise of Article 2B,for Software and Information Licensing, 13 BERKELEY TECH. L.J. 891, 896 n. 16 (1998).

(67.) See 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 market has yet to fully mature and that revenues from licensing intellectual property could top a half-trillion dollars annually in ten years. Id. at 59. A software industry analyst noted that Microsofts Windows 2000 relies on an aggressive licensing scheme to increase revenue. Michael Kanellos, Licensing Fees a 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).

(68.) Thurow, supra note 64, at 97.

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

(70.) Id. at 56.

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

(72.) Id.

(73.) See id. at 110-13.

(74.) See FERGUSON, supra note 42, at 107-08.

(75.) Id. at 280-81.

(76.) Shapiro & Varian, supra note 44, at 107.

(77.) This is generally referred to as a programs “portability” within the information industry. According to Linus Torvalds, “[p]ortability has long been a holy grail of the computer industry.” Linus Torvalds, The Linux Edge, in OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 101 (Chris DiBona et al. eds., 1999). Ideally, a perfectly portable program is “write once, run anywhere” software. In other words, mating other programs to the first requires little, if any, customization. Id.

(78.) FERGUSON, supra note 42, at 107-08.

(79.) “When your code gets both better and simpler, that is when you know its right.” RAYMOND, supra note 7, at 51.

(80.) In this context, a “malleable” program is one whose architecture is easily adaptable to new programs, environments and systems. See FERGUSON, supra note 42, at 108.

(81.) Id.

(82.) Id. at 107-08. “We have tried to build systems whose complexity overwhelms us, because there is often a tradeoff between simplicity and performance.” LEVY, supra note 62, at 81.

(83.) See supra note 78 and accompanying text.

(84.) FERGUSON, supra note 42, at 108.

(85.) “Increasingly, the value of any good (say, a computer operating system) depends on the number of users

(86.) FERGUSON, supra note 42, at 280-81.

(87.) Id. at 296.

(88.) JAMES WALLACE & JIM ERICKSON, HARD DRIVE: BILL GATES AND THE MAKING OF THE MICROSOFT EMPIRE 216-17 (John Wiley & Sons 1992).

(89.) FERGUSON, supra note 42, at 141.

(90.) Id. at 296. Wallace & Erickson, however, point out that Microsofts operating system “became an industry standard as much from the momentum generated by the huge success of the PC as anything Microsofts brash, competitive chairman did. As the IBM PC gained in popularity, more and more programmers wrote software for that machine and for the operating system…. “WALLACE & ERICKSON, supra note 88, at 213. They also credit Microsofts success in achieving the “industry standard” to its marriage with IBM: IBMs PCs used Microsofts operating system, and Microsofts enviable position resulted from the foothold it established due to the proliferation of IBM PCs and IBM clones that began to flood the market in early 1983. Id. at 232-33.

(91.) See generally FERGUSON, supra note 42, at 304-05 (providing an intriguing behind-the-scenes look at the competition between Microsoft and WordPerfect involving the “bundling” of programs into an office suite).

(92.) See id. at 141.

(93.) Hamilton & Sabety, supra note 4, at 249.

(94.) Id.

(95.) Id. at 250

(96.) See Thurow, supra note 64, at 97. Companies such as Intel guard their intellectual property and they have employed their legal departments to defend against its unauthorized use by others. Id.

(97.) Id.

With the advent of the information revolution–or the third industrial

revolution (call it what you will)–skills and knowledge have become the

only source of sustainable long-term competitive advantage. Intellectual

property lies at the center of the modern companys economic success or

failure. … Major companies such as Microsoft own nothing of value except

knowledge. Fighting to defend and extend the domain of their intellectual

Property is how they play the economic game.

Id. at 96. Richard Thoman, Xeroxs Chief Executive Officer, stated the importance of intellectual property even more bluntly: “[c]ompanies that are good at managing IP will win. The ones that arent will lose.” Rivette & Kline, supra note 67, at 54.

(98.) Clapes et al., supra note 5, at 1503-04.

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

(100.) 797 F.2d 1222 (3d Cir. 1986).

(101.) Id. at 1225.

(102.) Id. at 1228.

(103.) Id. at 1226-27.

(104.) Id.

(105.) Id.

(106.) Id. at 1248.

(107.) Id. at 1236.

(108.) Id. at 1240.

(109.) Id.

(110.) Id. at 1239.

(111.) See generally Miller, supra note 24, at 997-98 (defending the Third Circuits decision in Whelan).

(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 that “[w]ithin the entertainment industries, durable hits are as rare as April snow,” and intellectual property safeguards such as copyright are vitally important to protect the authors proprietary interests. Viewed from the perspective of an author protecting a potential franchise, broad copyright protection is desirable.

(113.) Clapes et al., supra note 5, at 1501 (“The vitality of the software industry could be imperiled by a drastic limitation of the scope of copyright protection available to the authors of computer programs.”).

(114.) See Haynes, supra note 63, at 567-68. This overprotection of computer programs creates a monopoly and “is leading to anti-competitive effects” that stifle technological advancement in the computer software industry. Hamilton & Sabety, supra note 4, at 242.

(115.) See Haynes, supra note 63, at 568.

(116.) Id. at 569.

(117.) Hamilton & Sabety, supra note 4.

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

(119.) Id. at 712.

(120.) Id. at 698.

(121.) Id.

(122.) Id. at 698-99.

(123.) Id. at 701.

(124). Id.

(125). Id.

(126.) Id. at 701.

(127.) The court noted:

In any suit for copyright infringement, the plaintiff must establish its
ownership of a valid copyright, and that the defendant copied the
copyrighted work. The plaintiff may prove defendant’s copying either by
direct evidence or, as is most often the case, by showing that (1) the
defendant had access to the plaintiff’s copyrighted work and (2) that
defendant’s work is substantially similar to the plaintiff’s copyrightable
material.

Id. (citations omitted).

(128.) Id.

(129.) Id. at 702.

(130.) Id. at 706-11.

(131.) Id. at 706.

(132.) Id.

(133.) See Karjala, supra note 26, at 526-27.

(134.) See, e.g., Autoskill Inc. v. National Educ. Support Sys., Inc., 994 F.2d 1476, 1491-98 (10th Cir. 1993) (applying the “abstraction, filtration, comparison” test to a computer program that taught reading skills).

(135.) Karjala, supra note 7, at 993-94.

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

(137.) Id.

(138.) Id.

(139.) Id.

(140.) Id.

(141.) Karjala, supra note 26, at 527-28.

(142.) Id. at 528.

(143.) See FERGUSON, supra note 42, at 107-08.

(144.) Karjala, supra note 26, at 528 (emphasis added) (footnotes omitted).

(145.) Id. at 528 n.37 (quoting Pamela Samuelson et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2353 (1994)).

(146.) RAYMOND, supra note 7, at 45 (quoting FREDERICK P. BROOKS, THE MYTHICAL MAN-MONTH (1975)).

(147.) FERGUSON, supra note 42, at 107.

(148.) Risch, supra note 3, at 511.

(149.) John R. Quain, Are You Ready for Linux?, FAST COMPANY, Jan.-Feb. 2000, at 268. Anyone who has access to the Internet can download and tinker with Linux code because there are no licensing fees for looking at, adapting, and fixing the code. Id. at 270. Linux is a paradigm for the distributed collaboration model of software development. Id.

Linux is … a huge patchwork of code that defines a rapidly growing
cybernation, the tightly linked community of those who make and use it.
What unites these coders is the drive to create the world’s greatest
operating system, one more powerful than any commercial Unix, able to run
on practically any hardware, and infinitely customizable.

Glyn Moody, The Greatest OS That (N)ever Was, WIRED (Aug. 1997), at http:/ /www. wired. com/ wired/5.08/linux.html.

(150.) Michael Stutz, Freed Software Winning Support, Making Waves, WIRED, at http:// www. wired. com/ news/ technology/ 0,1282,9966,00.html (Jan. 30, 1998).

(151.) David Einstein, The Penguin that Roared, SF GATE, at http:// www. sfgate. com/ cgibin/ article.cgi?file=/ chronicle/ archive/ 1998/ 09/ 08/ BU8 5830.DTL (Sept. 8, 1998).

(152.) Id.

(153.) The label “open-source” came out of a meeting conducted between Raymond and other OSS luminaries on February 3, 1998, in Palo Alto, California. History of the Open Source Initiative, at http://opensource.org/history.html (last visited Sept. 8, 2000).

(154.) Introduction to Open Source, at http://www.opensource.org/intro.html (last visited Sept. 6, 2000). Apropo of the earlier “cathedral” metaphor, Raymond describes this process as the “Bazaar” style of software development. “[The open-source] style of development — release [betas] early and often, delegate everything you can, be open to the point of promiscuity…. No quiet, cathedral-building here — rather the [open-source] community seemed to resemble a great babbling bazaar of differing agendas and approaches … out of which a coherent and stable system could seemingly emerge only by a succession of miracles.” RAYMOND, supra note 7, at 30 (emphasis added).

(155.) Introduction to Open Source, supra note 154.

(156.) In an internal memorandum, Microsoft software developers admitted that the Linux OS and Internet Navigator combination ran thirty to forty percent faster than the comparable Microsoft software, Windows NT and Internet Explorer. Charles Mann, Programs to the People, TECH. REV., Jan.-Feb. 1999, at 41.

(157.) Itoi, supra note 55.

(158.) Id.

(159.) AT&T developed UNIX in the 1970’s in an attempt to develop a single operating system (“OS”) that could run all the various computers AT&T used. YOUNG & ROHM, supra note 40, at 61. Furthermore, AT&T found in the 1970’s, and it is still tree today, that getting proprietary OS’s to talk to one another is not easy. Id. At the time, AT&T had been trying to get the minicomputers of a dozen different vendors to work together. Id.

(160.) Apache, the web server behind most of the websites on the Internet, was developed via 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 into sites on the World Wide Web. The “OS” directs the computer’s internal functions. Id. In Netcraft.com’s February 2000 survey, more than half the Web servers on the Internet (9.9 million) were running on OSS, and industry analysts estimate that by the end of year 2000, half the websites on the Internet will be running Linux as their OS. Can the Enterprise Run on Free Software?, STRATEGIC FIN., Mar. 2000, at 52. This is significant because the OS is the most critical part of the system. As Linus Torvalds, the creator of Linux, notes, “[o]ne thing that makes operating systems special is that it’s extremely hard to change them…. So changing an operating system is like trying to go in and transplant a person’s brain.” Michael Vizard, Linus Torvalds Talks Economics and Operating Systems, at http:/ /www .infoworld. com/cgi-in/displayStory.pl?/ interviews/ 980409torvalds.htm (Apr. 9, 1998).

(161.) Raymond, supra note 57.

(162.) Id. “Open-source software goes through rigorous peer review and has great reliability. Without peer review, software reliability suffers. This fact in itself may be sufficient to marginalize closed-source commercial development.” Id. (emphasis added).

(163.) Itoi, supra note 55.

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

Science is ultimately an Open Source enterprise. The scientific method
rests on a process of discovery, and a process of justification. For
scientific results to be justified, they must be replicable. Replication is
no possible unless the source [code] is shared: the hypothesis, the test
conditions, and the results….

Where scientists talk of replication, Open Source programmers talk of
debugging. Where scientists talk of discovering, Open Source programmers
talk of creating. Ultimately, the Open Source movement is an extension of
the scientific method, because at the heart of the computer industry lies
computer science.

Chris DiBona et al., Introduction to OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 7 (Chris DiBona et al. eds., 1999).

(165.) For an interesting discussion of how the “hacker” community defines a “hacker,” see Eric Raymond, How to Become a Hacker, at http://www.tuxedo.org/-esr/faqs/hacker-howto.html (last visited Sept. 6, 2000). Interestingly, the “hackers” disapprove of those who “get a kick out of breaking into computers and phreaking the phone system. Real hackers call these people ‘crackers’ and want nothing to do with them.” Id.

(166.) RAYMOND, supra note 7, at 41. Raymond labeled this phenomenon “Linus’s Law.” Id. “Given enough eyeballs, all bugs are shallow.” Id. He observes that using the Internet, “Linux was the first project to make a conscious and successful effort to use the entire world as its talent pool.” Id. at 62. Later, “[n]o closed-source developer can match the pool of talent the Linux community can bring to bear on a problem. Very few could afford even to hire [as many people as have contributed to OSS].” Id. at 66.

(167.) Id. at 41-43.

(168.) Bob Trott, Microsoft Memo Ponders How to Slow Linux, PCWORLD TODAY, at http://www.pcworld.com/news/article.asp?aid=8647 (Nov. 6, 1998).

(169.) Id. (noting that the “they” referred to in Microsoft’s memo is the open-source community and that the memo voices concern over how the cycle time between OSS releases is a fraction of the time that Microsoft requires with its releases) (emphasis added).

(170.) Josh McHugh, For the Love of Hacking, FORBES, Aug. 10, 1998, at 96 (providing an example of the speed with which OSS develops solutions to problems). Mike Tarsala, Linus, Linux Steal the Comdex Show, CBS MAKETWATCH, http:// www. cbs. marketwatch. com/ archive/ 19991120/ news/ current/ comdexwrap. htm (Nov. 20, 1999) (stating that businesses are increasingly willing to use Linux because improvements to the software “come to market extremely quickly”).

(171.) Itoi, supra note 55.

(172.) Risch, supra note 3, at 532 (“An interesting question is whether the availability of free software decreases the incentive for others to create competing software due to lack of demand at any price above zero.”).

(173.) Dem, supra note 55.

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

(175.) Fixing bugs is like “[giving] the patient a kidney transplant and his heart suddenly fails

(176.) RAYMOND, supra note 7, at 41. In addition, Raymond notes, the central problem of software engineering is the low reliability. There isn’t enough research or engineering to improve the process, but instead software engineering involves extensive independent peer review. Dern, supra note 55.

(177.) Heffan, supra note 29, at 1489, 1507-08.

(178.) The Linux code “kernel” is the heart of the Linux operating system. Linux is “the code that connects directly to the computer’s hardware.” Software applications are layered on top of the ‘kernel.’ Andrew Leonard, I Ran Linux — And Lived, NEWSWEEK, Jan. 18, 1999, at 62. Robert Young underscores the kernel’s importance

(179.) Richard Stallman, The GNU Operating System and the Free Software Movement in OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 59 (Chris DiBona et al. eds., 1999).

Copyleft uses copyright law, but flips it over to serve the opposite of its
usual purpose: instead of a means of privatizing software, it becomes a
means of keeping software free. The central idea of copyleft is that we
give everyone permission to run the program, copy the program, modify the
program, and distribute modified versions — but not permission to add
restrictions of their own. Thus, the crucial freedoms that define ‘free
software’ are guaranteed to everyone who has a copy
inalienable rights.

Id. Interestingly, the whole Free Software Movement has its genesis in a common problem, a recalcitrant printer. As Young and Rohm describe, in 1984 at MIT, Stallman, an important early OSS figure, was frustrated that he could not fix the printer in his office, and the manufacturer denied him access to the source code that would have enabled him to fix the bug himself. YOUNG & ROHM, supra note 40, at 20.

(180.) Mann, supra note 156, at 39. For purposes of this article, GPL is shorthand for the numerous licenses that perpetuate the distributed collaboration model of software development. Such licenses include Netscape’s Mozilla and Netscape Public Licenses (NPL), the Berkeley Software Distribution license (BSD), and to some extent, Sun’s Community Source License.

(181.) Gomulkiewicz, supra note 34, at 186. “The GPL, conceived by Richard Stallman and the Free Software Foundation, is the bedrock upon which vast amounts of free software stands firm…. the GPL ensures that the underlying source code to a software program will be freely available to the general public.” Andrew Leonard, Who Controls Free Software?, SALON MAG., available at http://www.salon.com/tech/feature/1999/11/18/red_hat/index.html (Nov. 18, 1999).

(182.) Gomulkiewicz, supra note 34, at 186. The software industry has embraced the use of mass-market end-user licensing agreements (“EULAs”). Robert W. Gomulkiewicz & Mary L. Williamson, A Brief Defense of Mass Market Software License Agreements, 22 RUTGERS COMPUTER & TECH. L.J. 335, 339-41 (1996).

(183.) Heffan, supra note 29, at 1508 (citations omitted).

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

(185.) Heffan, supra note 29, at 1509 n. 137. Richard Stallman sent an e-mail to Ira Heffan in which he reported, “We have sent letters demanding compliance [with the GPL’s terms], several times a year I’d estimate. We have never had to sue.” Id.

(186.) See generally Patrick K. Bobko, Linux And General Public Licenses: Can Copyright Keep “Open Source” Software Free?, 28 AIPLA Q.J. 81 (2000) (arguing that GPLs are enforceable non-exclusive licenses).

(187.) Gomulkiewicz, supra note 34, at 190. Gomulkiewicz argues that although EULAs are adhesion contracts, they are nonetheless enforceable. See also Gomulkiewicz & Williamson, supra note 182, at 344 n.31.

(188.) RAYMOND, supra note 7, at 141-42.

(189.) Id.

(190.) Id. Some for-profit companies who sell OSS but do not assert proprietary interests over the software have emerged. For example, Red Hat sells the consumer compiled, easy-to-install, pre-packaged Linux software. Users “could download Linux off the Internet for free, but many pay $50 to get Red Hat-brand code, which is easy to install and comes with documentation and support.” See J. William Gurley, Why Free Code Makes Sense, FORTUNE, Aug. 2, 1999, at 228. Indeed, companies like Red Hat rely upon OSS’s continued revision and improvement for their sales

(191.) RAYMOND, supra note 7, at 64 (stating that hackers seek “the intangible reward of their own ego satisfaction and reputation among other hackers”). Raymond has also romantically analogized the hackers’ pursuit of prestige within their community to the Native American tribes of the Pacific Northwest who would erect totem poles as advertisements of their tribe’s prosperity. McHugh, supra note 170, at 99. For an in-depth analysis of the hacker culture, see RAYMOND, supra note 7, at 79-135. Raymond describes the hacker culture as a “girl culture” in which the members’ social status is determined by what they give away. “Keep in mind that [hackers] have been, for the most part, coding for years, and don’t see programming itself as burdensome, or as work.” Chris DiBona et al., Introduction to OPEN SOURCES: VOICES FROM THE OPEN SOURCE REVOLUTION 13 (Chris DiBona et al. eds., 1999).

(192.) Moody, supra note 149. “For most hackers, the goal is to create neat routines, tight chunks of code, or cool apps that earn the respect of their peers.” Id.

(193.) McHugh, supra note 170, at 96.

(194.) Id.

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

(196.) Many for-profit organizations have begun to give software (and information) away. There are two reasons for this: (1) the marginal cost of creating an extra copy is virtually nothing, and (2) information is an “‘experience good’ — customers don’t know what its worth until they’ve actually tried it.” Shapiro & Varian, supra note 44, at 108. “Many companies use free versions simply to create awareness for their products.” Id. The developers hope that the user will become comfortable enough with an incomplete free version to pay for the complete version. Id. at 108-09. Similarly, companies give away a free basic version of their software “in order to build a base of customers to which you can sell follow-on products, such as extensions, upgrades and services…. The idea is to get customers to become dependent on the product. The more they use it, the more interested they’ll be in add-ons.” Id. at 109.

(197.) Itoi, supra note 55. Itoi identifies four classes of revenue derived from open source software. Id. The first is comprised of fees generated through the support of open source software products. Id. Red Hat is the principal practitioner of this business model. Id. The second type of revenue stream is for companies to use OSS as a “loss leader, giving away software in order to position themselves better for sales of their closed software.” Id. The third class involves “the hardware company embrac[ing] open-source software in order to acquire better interface tools faster and for a smaller investment,” id., and this class of revenue stream is often utilized by hardware companies “for which software is an expense rather than a profit generator.” id. Finally some companies can make money selling the supporting accessories like books and manuals that the open-source community lacks. Id.

(198.) Brian E. Tapich, Startups: The Open-Source Business Model Has VCs Baffled, RED HERRING MAG. (Feb. 1999), available 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 the implications for the open-source movement).

(199.) RAYMOND, supra note 7, at 141.

(200.) Id. at 142.

(201.) Raymond describes this shift as the difference between a program’s “use value” and its “sale value.” RAYMOND, supra note 7, at 141-48. “[L]ike all other kinds of tools or capital goods, [computer programs] have two distinct kinds of economic value. They have use value and sale value. The use value of a program is its economic value as a tool. The sale value of a program is its value as a salable commodity.” Id. at 141. Raymond argues that computer software does not have the characteristics of a typical manufactured good and that the software industry is “largely a service industry operating under the persistent but unfounded delusion that it is a manufacturing industry.” Id. at 145.

(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), at http:// www. redherring. com/ insider/ 1999/ 1117/ news-redhat.html.

(203.) By the summer of 1999, over twenty companies offered computers preloaded with Linux, including giants like Dell, IBM and Compaq. YOUNG & ROHM, supra note 38, at 144. See also Matt Richtel, First Central Lab for Linux Research Planned, N.Y. TIMES, Aug. 30, 2000, at C5 (discussing the anticipated announcement of a joint venture by Intel, IBM, Hewlett-Packard, and other prominent computer companies to create and finance a laboratory for testing and supporting the latest versions of Linux).

(204.) See Jeff Claubaugh, Are We 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…. It is effectively all freely-redistributable objects: tomatoes, vinegar, salt and spices…. We don’t make ketchup because it is cheaper and much more convenient to buy ketchup … than it is to make it…. “Young, supra note 190, at 116.

(205.) Tapich, supra note 198. The same program with maintenance and support costs $79.95. The comparable Microsoft products cost $96.82 and $329.90 respectively. Potter, supra note 197.

(206.) Itoi, supra note 55.

(207.) Tarsala, supra note 170.

(208.) The term “industry standard” is used loosely in this context because no one standard version of Linux exists at any one time. Commercial OSS distributors like Red Hat standardize the software they sell

(209.) It is also readily available because developers take free source code and develop programs that are significantly less expensive than traditional products. For example, Corel Computer sells a line of Linux-based network computers called Netwinder. Aside from being superior to commercial alternatives, the company’s executives say that “licensing competitive OS would have cost $500,000 and six months to a year of development time.” Itoi, supra note 55. For example, OSS distributor Caldera sells its OpenLinux Base 1.2 multi-user office suite for $199. The comparable Microsoft product, NT Workstation and Microsoft Office costs more than $1,500. Paula Rooney, Open OS Provides Flexible, Stable Computing Platform: Linux Environment Offers Endless Possibilities, COMPUTER RETAIL WEEK, Aug. 17, 1998, at 19.

(210.) Moody, supra note 149.

(211.) Raymond, supra note 57.

(212.) Id.

(213.) Id. Additionally, companies like the idea that “improvements in the software can come from a variety of sources, so at least in theory, innovations come to market extremely quickly.” Tarsala, supra note 170.

(214.) Raymond, supra note 57.

(215.) Linux is already growing in popularity in non-PC markets. For example, Linux is popular in
the most vibrant part of the computing spectrum — the portable devices and
information appliances that are expected to proliferate much more widely
than the personal computer…. This is the firefight to put code in the
brains of small mobile devices, where no one cares about the operating
system. And here Windows 2000 and its lesser Spin-offs, such as Windows CE,
right now look like they are not likely to play a big role.

Charles Babcock, Did Windows 2000 Miss the Revolution? ZDNET, at http:// www. zdnet. corn/ zdnn/ stories/ news/ 0,4586,2437600,00.html (Feb. 15, 2000) (predicting that Linux will become more popular as more third-party applications become available). For portable devices in which memory is the primary constraint, Linux is the OS of choice. TiVo, a computer/television hybrid that uses a hard drive to store programs so that the viewer can watch them at any time, chose Linux as its OS. Linux was selected as the OS because of 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).

(216.) Bobko, supra note 186, at 87. See also Mike Kuniavsky, It’s the User, Stupid, SENDMAIL.NET at http:// sendmail. net/?feed=interviewkuniavsky (Jan. 20, 2000) (explaining why the open-source community is having difficulty gaining mindshare with individual PC users)

(217.) John Lettice, Linux Is Outselling Windows 98, Says Microsoft, THE REGISTER, at http://www. theregister. co. uk/ content/ archive/4739.html (Apr. 6, 1999).

(218.) Landley, supra note 160.

(219.) Indeed, this project is already well underway. Perhaps the leading open-source project attempting to create a user-friendly interface similar to that employed by Windows is called GNOME. GNOME’s developers claim their software will, among other improvements, present a more logical user interface than does the Microsoft product. Mann, supra note 156, at 42 (GNOME version 1.0 is available for free at www.gnome.org).

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

(221.) Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,156 (1975).

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

(223.) Computer Assocs. Int’l v. Altai, Inc., 982 F.2d 693, 705 (1992).

(224.) Karjala, supra note 26, at 528.

(225.) FERGUSON, supra note 42, at 107-08.

(226.) Karjala, supra note 7, at 993-94.

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

(228.) Computer Assocs. Int’l, 982 F.2d at 706.

(229.) Haynes, supra note 63, at 572.

(230.) Computer Assocs. Int’l, 982 F.2d at 706.

(231.) Haynes, supra note 63, at 568.

(232.) Clapes et al., supra note 5, at 1509.

PATRICK K. BOBKO, B.S., United States Air Force Academy, M.A., University of South Carolina, J.D., The George Washington University. He is an Associate with Richards, Watson & Gershon, Los Angeles, CA. He would like to thank Professor Roger Schechter for his sage advice, with this article and otherwise, and Mr. Ryan Bobko and Dr. Peter Bobko for their patience, assistance, and perspective. The views and opinions expressed herein are those of the author and are not necessarily the views or opinions of Richards, Watson & Gershon.