Subject: M$ Monitor: Source Code Secrecy
Audrie Krause (audrie@netaction.org)
Date: Fri, 21 Aug 1998 18:31:54 -0700 (PDT)
Date: Fri, 21 Aug 1998 18:31:54 -0700 (PDT) Message-Id: <2.2.16.19980821183446.5a17344e@pop.igc.org> To: roundtable@cni.org From: Audrie Krause <audrie@netaction.org> Subject: M$ Monitor: Source Code Secrecy
The Micro$oft Monitor
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Published by NetAction Issue No. 34 August 20, 1998
Repost where appropriate. Copyright and subscription info at end of message.
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In This Issue:
Source Code Secrecy and Microsoft's Copyright Monopoly
Welcome NetAction's Intern
About the Micro$oft Monitor
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Source Code Secrecy and Microsoft's Copyright Monopoly
-- By Nathan Newman, Project Director
-- Email: <nathan@netaction.org> or <mailto:nathan@netaction.org>
On August 6, Microsoft was ordered by U.S. District Court Judge Thomas
Penfield Jackson to turn over the source code for its Windows operating
system to government lawyers so they could determine whether the company
has been using internal structures of the code to illegally expand its
monopoly.
Complaining about the decision, Microsoft compared it to being forced
to disclose the "software equivalent to the formula for Coca-Cola."
Microsoft seems to have an obsession with Coca-Cola comparisons -- in a
previous court decision involving bundling Navigator as an option with
Windows, Microsoft compared this to requiring a six pack of Coke to include
Pepsi. Maybe its Microsoft's envy for Coke's stock market capitalization,
since it is one of Microsoft's few rivals, or maybe the company really
thinks comparisons to a nonessential consumer good with low nutritional
value is the best analogy to Windows.
Whatever the reason for Microsoft's obsession, the problems in the
comparison just highlight why a secret operating system is so incompatible
with both legal and innovation needs in the new economy.
Legally, this comparison just shows how deliberately misleading
Microsoft propaganda has been in trying to cloud the legal case against
the company. Unlike Coca-Cola, whose rivals are free to try to duplicate
the formula and sell it at will (with only employees barred by trade
secret law from passing on the formula to anyone else), Microsoft has the
full force of copyright protection in preventing anyone from duplicating
its software even if every detail was known publicly.
And Microsoft has made much use of the governments' help in enforcing
that copyright against those who have pirated its software. Now, the
government suspects that Microsoft has abused the copyright protection it
enforced, so the government wants to examine the software it previously
defended on Microsoft's behalf in order to make sure Microsoft is not using
that source code for unfair anticompetitive advantage.
What is amazing is that Microsoft would even try to contest the
government's right to review its software after the company took advantage
of the government's free legal services to enforce its copyrights.
Microsoft worries that others might also get a peek at its source code.
The question, though, is why rivals don't already have the right to review it.
It is an anomaly in intellectual property law that the nuts and bolts
of a piece of software's design is not publicly available. Traditional
works protected by copyright, like books and music, wear their design
literally in their text and in their musical notes, available to any
fellow artist to study and improve upon. Similarly, creators of
traditional technology protected by patents are required to file the
details of how an innovative technology functions in order to obtain patent
protection.
All of this is in line with the goal of patent and copyright protection,
detailed in the U.S. Constitution, to "promote the progress of science and
the useful arts." This goal was traditionally met by protecting
intellectual property in two ways: innovators were compensated for their
work and thus had an incentive to produce it, while, just as importantly,
they were required to register their work publicly so other innovators would
have full access and could attempt to create an improved version.
Software has never fit comfortably within this scheme, since most
software innovations are too incremental to meet the standards of
fundamental innovation protected by patents. Yet those innovations are not
really of the same character as artistic creations.
Still, as long as most software was generally made up of discrete
programs running independently, copyright protection was generally both
economically and technologically useful.
However, as software is increasingly designed to work in conjunction
with other software, especially as networked computing explodes due to the
Internet, the secrecy of source code allowed under copyright increasingly
obstructs innovation in fundamental ways.
In the case of Microsoft, we increasingly see that innovation is
endangered as a result of this source code secrecy. That's because
Microsoft controls the operating system needed to make other desktop
software work, and the company is seeking to control the browser software
that all Internet software needs to function.
Early in the 1990s, a number of analysts called attention to the way
Microsoft developers could use inside knowledge of the source code for
Windows to give its applications developers an advantage over rivals. Not
only did this give an anticompetitive advantage to Microsoft, the fact
that all programmers do not have full access to knowledge of the operating
system and cannot innovate as fully has meant a general loss for
consumers. Because the functions of the operating system are integrated
behind source code secrecy, it becomes very hard for anyone else to
improve some aspect of its functioning without replacing the whole Windows
operating system in toto.
At one level, the opposition to Microsoft bundling Internet Explorer
into Windows is not just the fear that Microsoft will add to its desktop
monopoly but that a whole new set of functions, namely access to the
Internet, will disappear into source code secrecy. As long as the browser
was a separate piece of software from the operating system, all
competitors had a somewhat level playing field, at least in regards to
programming options, for integrating Internet functions into desktop
computing.
By definition, since no one else can access the operating system
source code directly, Microsoft has no competition in integrating
Internet functions into the core of the operating system. The bundling of
browser functions into the operating system is therefore the death of
competitive innovation in fundamental aspects of Internet functionality.
The alternative would be a world where source code was public and
programmers were free to create innovative additions to the core operating
system. As detailed in the last Microsoft Monitor, there is a whole
array of open source software, including the Linux operating system, where
this is the reality. The result is software that is generally considered
more innovative and robust than commercial software where only a limited
number of programmers have access to secret source code.
Now, Linux is not going to supplant Windows anytime soon, although it is
making impressive gains. But its continuing innovation by a broad range of
programmers demonstrates what is lost by source code secrecy in Windows.
By revealing the source code of its Internet browser and encouraging
others to innovate improvements, Netscape has made an encouraging step in
the direction of open source computing, and Microsoft should be encouraged
to follow suit.
Many remedies for Microsoft's monopoly dominance have been discussed.
Ordering Microsoft to reveal its source code should be seriously considered
by the Justice Department and state Attorneys General as one aspect of that
solution. While Microsoft would in no way lose its current copyright
protection against piracy, competitors developing applications or operating
system variations, including software for Internet access, would be in a
much better position to fairly compete with Microsoft's own in-house
programmers.
If competitors could freely create innovative substitutes for
different functions of the Windows operating system, many of the concerns
about Microsoft would be lessened. Competition and innovation would be
enhanced -- a net plus for consumers in every way.
Copyright's protection is intended to enhance innovation. Where secrecy
serves instead to reinforce monopoly interests, it should give way to open
source code where all competitors can compete with a level playing field of
knowledge.
Here are some resources for more information on open source options in
the computing world:
A special issue of Web Review included a number of good articles on the
subject, including:
"Measuring the Impact of Free Software"
http://webreview.com/wr/pub/freeware/oreilly.html
"What's New in Free and Open Source Software
http://webreview.com/wr/pub/freeware/whatsnew.html
"The Origins of Free and Open Source Software"
http://webreview.com/wr/pub/freeware/origins.html
An article that deeply influenced Netscape's decision to release its
source code was Eric Raymond's "The Cathedral and the Bazaar"
http://www.earthspace.net/~esr/writings/cathedral-bazaar/
Another good article at the NetAction site is: "Information Wants to be
Valuable: A Report from the First O'Reilly Perl Conference"
http://www.netaction.org/articles/freesoft.html
There is also more information on NetAction's site at:
http://www.netaction.org/opensrc/
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Welcome NetAction's Intern
Mitch Stoltz, a fourth year student at Pomona College in Claremont, is
joining NetAction on September 1, 1998, for a semester-long internship.
Mitch is majoring in Public Policy Analysis with a self-designed focus on
technology issues, and he will be working on policy issues involving the
Internet and the software industry.
In addition to public policy, Mitch has a background in programming and
has worked at Sandia National Labs at the University of California,
Berkeley, and more recently at Netscape.
His policy studies last year focused on privacy, and the competing
interests of government and industry regarding encryption software. His
work at NetAction will include looking at technical standards and open
source software. Last year, as a volunteer, Mitch provided research
assistance for NetAction's first survey of web browser choices for customers
of the largest Internet service providers.
Beginning September 1, contact Mitch at: <mitch@netaction.org>.
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About The Micro$oft Monitor
The Micro$oft Monitor is a free electronic newsletter, published as part of
the Consumer Choice Campaign <http://www.netaction.org/msoft/ccc.html>.
NetAction is a national, non-profit organization dedicated to educating the
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Copyright 1998 by NetAction/The Tides Center. All rights reserved.
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