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.

You can see the same pattern in all the new legislative acts that purport to shape the new digital millennium. According to the U.S. Digital Millennium Copyright Act (1998), copyright owners don't need a court-approved injunction to go after material they judge to be infringing, as long as the material appears on the Web; it's up to the accused infringer, rather than the copyright holder, to go before a court and prove that the material does not, in fact, infringe. This perversion of traditional and reasonable conceptions of due process is already generating a “chilling effect” on free speech. Just look what happened when hackers decrypted CyberPatrol's banned site database. And what did they find? Errors aplenty, and gaping holes in the database's coverage. The deficiencies were sufficiently grave to cause genuine concern among parents about the software's effectiveness. In a more enlightened age, the publication of such material might have been successfully defended in a court of law by pointing to the benefits derived by consumers from the publication of such material. But not anymore, thanks to the DMCA. Copyright is now the absolute right, not free speech.

Sure, say the apathetic, this is bad legislation, but not to worry—be happy—the courts will throw it out. But this is naïve, pure and simple. Law is accretive, building momentum by the sheer weight of precedent and a whole series of laws that add up to consistent intent. And that's just what's accumulating. Aided by campaign contributions, massive lobbying efforts, and legislative processes that seem to leave little room for considerations of the public good, the information technology industry is enlarging the scope of copyrights and patents on multiple fronts—and they're winning.

For the most part, the Linux community is gratified by Judge Jackson's decision, but not without a certain ambivalence. Sure, there's an argument that the government ought to step in to level the playing field, and there's an extra attraction in that the victim, this time, is none other than the Evil Empire itself. But the Libertarians among us are quick to point out the risks of such interventions. Even the most well-meaning laws can be crude, politically motivated and outright counterproductive.

We'll argue about the merits of the Justice Department's intervention in the Microsoft case for years to come. Personally, I believe that antitrust laws are needed, and Microsoft's actions show why they're needed. Still, I'm starting to think that my Libertarian friends might have the edge, in the long run. It's increasingly clear that the government is playing an dysfunctional role in exaggerating the scope of copyrights and patents—a role that could well become catastrophic. It's only a matter of time before an aggressive company uses copyrights and patents to create and sustain a total market monopoly—and one that stands up in court—even though the company has originated absolutely nothing and uses its state-guaranteed powers to push creative new players out of their market. It's already happening, actually, albeit on the small scale.

If we're serious about keeping the playing field level, there's only one possible solution: the U.S. government (and all governments) should place software algorithms beyond the scope of patent protection, roll back legislation that equates copyrights to real property, and roll back the duration of copyrights to a period no greater than the life of the author. To do anything less is to threaten the very foundations of economic, scientific and technological progress that have created the twentieth century's economic boom.

Bryan Pfaffenberger is a professor in the University of Virginia's Media Studies program, where he's developing a University-wide computer literacy course for first-year students. He's also the author of Linux Clearly Explained (Morgan-Kaufmann), Mastering GNOME (Sybex) and the forthcoming Linux Command Instant Reference (Sybex).