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March 01, 2003

China Deal: Perjury by Microsoft

When Microsoft agreed to show its source code to Chinese officials, it showed how empty the company's rhetoric has been about the need to protect its source code. In fact, as this article notes:

MICROSOFT MAY well have signed a deal to disclose the secrets of its Windows operating system to mainland China, but that has prompted discussion about a statement Microsoft senior VP Jim Alchin made in the US antitrust last May.

He said under oath then that disclosing Windows code might compromise US national security, and, according to post on LawMeme, might even jeapordise the US war effort.

So people are asking why, if Microsoft is prepared to show the code to the Chinese, it couldn't possibly show such code to its own country.

Back in 1998, when I was Project Director at NetAction and harassing Microsoft professionally, I wrote this piece about Microsoft's complaints about revealing its source code to Judge Penfield. I argued that secret source code was incompatible with the very tenets of intellectual property:

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.

Microsoft's revelation of its code to China shows that it will cut deals with authoritarian governments for a price, yet stifle innovation of commercial rivals through secrecy. From the beginning of the Microsoft trial, I argued that beyond any economic sanctions imposed, the most basic result of the antitrust trial should have been public access by all to Microsoft's source code:

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.

Posted by Nathan at March 1, 2003 11:35 AM

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