IPSI Conference Montenegro
September 2005
UNIX, Linux, and the Software Copyright
Dennis S. Karjala
Jack E. Brown Professor of Law
Arizona State University
The Problem
• The problem is that one company dominates
the market for personal computing
operating software – the Microsoft problem
– The lesser aspect of this problem is that we pay
monopoly prices for crucial “gateway” software
that we need for our computers to operate
– The larger aspect of the problem is that onecompany dominance almost surely reduces
innovation
The Root Cause of the Problem
• The cause is the software copyright
• Copyright was designed for literature, art
and music
• Patent was designed to protect technological
innovation
• Computer software obfuscates the
traditional boundary between patent and
copyright
SCO v. IBM
• SCO has succeeded to ATT’s rights in Unix
• Linux is in the Unix family
• Linux is the only software that seems to
have a change of dethroning Windows
• SCO alleges that IBM, by contributing to
Linux, has violated SCO’s rights in Unix
• The case therefore ultimately poses a
challenge to Linux itself and is a dramatic
example of the danger of protecting
computer programs under copyright
• To see why we first have to look at the basic
problem
Patent and Copyright Goals
• These two venerable statutes seek to
accomplish the same end: Protect the fruits
of intellectual creativity for the purpose of
encouraging the production of intellectual
works
• They go about their task, however, in very
different ways
Patent
• Patents issue only upon formal application
and after examination by a skilled examiner
for “novelty” and “nonobviousness”
• Patent requires a complete specification of
the invention
• The scope of patent protection is defined
and narrowly limited by the claims
• The term of patent protection is 20 years
(from filing)
Copyright
• Copyright arises automatically upon fixation
• The scope of copyright protection is defined by
the vague idea/expression dichotomy
• Copyright infringement is determined by the
equally vague “substantial similarity” standard
• The term of copyright protection endures for 70
after the death of the author.
Why These Differences?
• There MUST be something in the nature of
“patent subject matter” that distinguishes it
from “copyright subject matter” that
justifies such radically different treatment
• Statements like “Patent protects
technology” or “Patent protects function”
were enough to distinguish the art, music,
and literature that were the traditional
subject matter of copyright
Confusion
• “[F]unctionality" is not a general bar to copyright
protection. Traditionally, copyright subsists in
original works of authorship whatever the purpose
of the work, so long as a multitude of means of
achieving the "purpose" remain available. Jane
C. Ginsburg, Four Reasons and a Paradox: The
Manifest Superiority of Copyright over Sui
Generis Protection of Computer Software, 94
Colum. L. Rev. 2559, 2566 (1994)
• [T]oday’s copyright law protects a wide
variety of disparate ‘writings,’ including
fact compilations, dictionaries, code books,
encyclopedias, advertising, and ‘how to’
instruction manuals, that, like many
computer programs, have a primarily
utilitarian rather than aesthetic,
entertainment, or educational purpose.
Arthur R. Miller, Copyright Protection for
Computer Programs, Databases, and
Computer-Generated Works: Is Anything
New Since CONTU?, 106 Harv. L. Rev.
977, 986 (1993)
• Utility does not bar copyright (dictionaries
may be copyrighted), but it alters the
calculus. Lotus Development Corp. v.
Borland International, Inc., 49 F.3d 807,
819 (1st Cir. 1995)(Boudin, J. concurring)
First Cut at a Meaningful
Distinction
• [A] ‘useful article’ is an article having an intrinsic
utilitarian function that is not merely to portray the
appearance of the article or to convey information.
U.S. Copyright Act, section 101
– Treating “useful articles” under the Copyright Act as
“functional” for purposes of defining the subject matter
distinction (with computer programs as an exception)
captures much of the traditional law.
– Maps, dictionaries, etc., are not functional and remain
under copyright, where they have always been
Digital Technology
• Computer programs,and certainly operating
systems, are functional under almost any
definition
• Their treatment as copyright subject matter
shows the need for a more careful
breakdown of the two types of subject
matter
Program Copyrights
• Congressionally mandated exception to the
functionality doctrine
– Reason was the vulnerability of code to cheap
and easy copying
– Patent cannot protect complex programs that
result from standard programming methods
Scope of Program Copyrights
• Congress did not specify the scope of
protection in a program, however
– Other functional aspects of programs, such as
SSO and user interfaces operations are not as
vulnerable to piracy as code
– Patent and trade secret are perfectly adequate to
protect these features
• US law has now developed, although
inarticulately, to this point: The program
copyright protects the code, and little more
Operating Software
• Network effects reduce the number of
efficient competitors and thereby inhibit
innovation – The Microsoft Problem
• Breaking up Microsoft would not solve the
problem
• Need publicly disclosed source code for
Windows and a compulsory license for
others to develop improvements
Linux
• This may be the only hope, at least for the
foreseeable future, of real competition in
operating software
• Potentially at stake is not just IBM’s role in
the development of open-source Linux but
that of Linux itself
SCO v. IBM
• IBM developed a “flavor” of Unix, called
AIX in the 1980’s, under license from ATT
• The license allowed the creation of
derivative works but prohibited their sale or
transfer
• IBM allegedly contributed pieces of AIX to
Linux, in breach of the agreement
• Ultimately, SCO gets around to charging
copyright infringement as well, based on
alleged code similarities
IBM v. SCO
• IBM has counterclaimed that SCO included
pieces of Linux to which IBM owns the
copyright in SCO Linux products that were
distributed contrary to the requirements of
the GPL
• IBM therefore charges both copyright
infringement and breach of contract
Source of SCO’s Rights
• Unix was developed by ATT in the 1960’s and
1970’s
• ATT licensed Unix rather freely, especially to the
academic and scientific communities, who made
numerous improvements and variations
• Eventually ATT decided it wanted to treat Unix as
a proprietary product and formed Unix System
Labs (USL) (to whose rights SCO succeeded in
1995)
• By this time, however, there were many players
Unix/Linux Timeline
USL v. BSD
• Berkeley Software Designs, based in
Berkeley but using code from many
contributors worldwide, launched a series of
Unix releases
• This was an early example of “open source”
software development
• BSD versions came to be widely used, and
BSD code was often incorporated into
proprietary versions of Unix.
• In the 1990’s USL sued BSD and UC for
infringing rights to Unix
• By that time, however, BSD’s Net2 code
was largely free of “hereditary” code taken
from original Unix
• Indeed, the versions of Unix then being
offered by USL (32V) contained much code
that originated with BSD
• The court observed that Net2 was ten times
the size of 32V, that the non-kernal overlap
was 130 lines out of 1.3 million, and that in
the kernal 56 lines out of 230,000
overlapped
• The case settled with BSD agreeing to
rewrite 26 files and credit USL for 71
others, while USL got the right to use, with
credit, over 2000 BSD files
Unix/Linux Timeline
Technical Issues – Tracing the
Code
• If these programs were ordinary literary
works, copied non-de minimis language of
even 1% of the total is usually actionable
• We would therefore be justified in combing
through the millions of lines of code in, say,
Net 2 or Linux to find and sanction the
“piracy”
Technical Issues
• Programmers use bits of code like tools:
When they know it accomplishes a
particular function in one program, they use
it for the same (or a modified) function in
another
• It makes no sense to make programmers
rewrite small functional subunits of code
just for the sake of rewriting
• This is not literature but electronic
functionality
The Real Issues
• Unix is a quintessential example of a
technological work that grew, and grew
better, by the incremental contributions of
thousands
• Had ATT taken the same attitude towards
Unix as Microsoft does today under
copyright, there is no reason to believe that
any, or much, of this development would
have occurred
• There would have been far fewer licenses to
companies like IBM or academic centers
like BSD
• The licenses would have had much stronger
language favoring ATT
• The Unix open-source community almost
surely would not have developed
Linux
• While Linux supposedly contains no stray code
from any of the Unix versions owned by SCO, it is
doubtful that it could developed as it has without
the core of Unix-familiar programmers who grew
up when Unix was “free”
• Linux has demonstrated a new model for product
development that became possible for software –
commons-based peer production
• Finally, Linux is our best hope for freedom from
the yoke of Microsoft