Guilty! What's Next for Linux?

Microsoft's guilty, says Judge Jackson. Is this good news for Linux? Here's the short answer: Yes and no. Here's the “yes” part: Microsoft's adversaries now have a potent weapon—Jackson's decision—and they'll use it the minute the Redmondians step out of line. Whatever happens in the appeal process, Microsoft will need to be nice for a while. That means Linux can do what superior technologies ought to do: gain market share. Actually, there's nothing new here. According to industry observers, Microsoft has been playing more nicely for some time now. With the spotlight trained on the firm's every action, they'd darned well better. As long as Microsoft's muzzled, it seems, Linux can look to a Halloween-free future. (The so-called “Halloween” documents disclose internal Microsoft musings about various nasty things the company could do to ward off the Linux threat.)

But there's a “no” part, too. Basically, Judge Jackson's decision sends a very powerful signal to the industry's attack dogs: Microsoft's game plan is too darned risky. It involves strong-arming suppliers and customers to obtain a commanding market share, a de facto monopoly, which you maintain using tactics that may cross the line separating legal and illegal behavior. The whole thing could blow up in your face. It happened to IBM. It happened to Microsoft, which emulated and perfected IBM's tactics. (Apparently, Microsoft isn't much more innovative in business strategy than it is in technology.) What worries me is that the attack dogs will switch wholeheartedly to a game they've only toyed with until now: using copyrights and patents for the same, anticompetitive purposes. The result could well be a world in which companies that have created absolutely nothing are able to obtain exclusive control of their markets—and it will all be perfectly legal.

Why risk creating monopolies illegally when the government will hand you a legal one? It's important to understand that copyrights and patents are monopolies—that's the very essence of the whole idea of intellectual property. If you get a copyright or patent, you get the right to market it exclusively. What's more, all this is perfectly legal. And if that's not enough, copyrights and patents are guaranteed by the full force and power of the State; if someone infringes, the State intervenes on your behalf. They'll throw the bastards in jail, if necessary, should they dare to intrude on your right to exclusive control of the market.

Now that's a monopoly! Sure, copyrights and patents are only temporary monopolies, granted for a “limited time” so that creative people and inventors can profit from their innovations. However, in the past 50 years, the U.S. courts, state legislatures, and U.S. Congress have exaggerated the privileges of copyright and patent holders to the level of ultimate absurdity—that is, to the point that these privileges overwhelm fundamental rights guaranteed by the Constitution, such as freedom of speech. Intellectual property is well on its way to becoming real property, and the implications for the marketplace are troubling indeed.

Skeptical?Just take a look at UCITA, the model sale-of-software goods legislation that is now under consideration in all 50 U.S. states. Of all the odious provisions of this bill, one of the most frightening is the way it transforms the traditional concept of copyright. In traditional copyright law, one's responsibilities to the copyright holder are discharged once you've bought the new book and paid your royalties to the author. This is the doctrine of first sale. UCITA throws first sale out the window. Once you've agreed to the “click here” license, you've also thrown away your rights to turn around and transfer the product to a third party. To do so, you'll need to get permission from the software publisher first. Can you imagine what's going to happen next time you sell a computer? You'd better have permission to transfer all the software on your system, including all the clip art, applications, utilities—the works. This won't affect consumers, probably, but it's going to be a nightmare for businesses.

Let's just consider another of UCITA's dandy little provisions, those that effectively prohibit reverse engineering. The courts have steadfastly defended reverse engineering as a fundamental right of free speech. After all, an organization concerned about security needs to know how a program works—and if the vendor won't divulge the needed information, the organization can rightfully reverse-engineer the program to discover whether any undocumented security holes exist. That is, they could until UCITA. If UCITA becomes law, software publishers can stick you with a license that forbids reverse engineering, and they may very well succeed in making this prohibition hold up in court.

What's really at stake here isn't just security. A cornerstone of the constitutional concept of intellectual property is just this: ideas are always in the public domain. According to traditional copyright, a programmer cannot protect the ideas in a new program, only the code. Of course, software publishers have turned to patents in an effort to protect software ideas, and the uncomprehending courts have given them just about everything they've asked for. Right now, there's a truly frightening process going on in which the U.S. Patent Office is handing out patents willy-nilly for even the most trivial or inconsequential computer algorithms, including many that are known to have existed for years. As I've argued in an earlier column, software algorithms are analytically indistinguishable from the scientific truths of nature, which are not subject to patents. This is a monstrous error, and the solution requires nothing less than an affirmation that software algorithms are beyond the scope of patent protection. But don't hold your breath.