Curious Programmers Face Legal Tangles with Leaked Windows Code

By Matthew Hicks  |  Posted 2004-02-14

Curious Programmers Face Legal Tangles with Leaked Windows Code

With portions of Microsoft Windows NT and 2000 source code running wild on the Internet, programmers are battling the temptation to peek at the operating systems code. Doing so, legal experts warn, could thrust developers and their software projects into a legal hotbed.

"Theres no legitimate reason to look at it," said Phil Albert, a partner at law firm Townsend and Townsend and Crew LLP, in San Francisco. "For a programmer or a company that develops software, theres too much risk to even touch it."

The Windows source code leak, discovered this week and confirmed on Thursday by Microsoft, has led to debate among developers on Internet message board about whether to view it and about the implications of doing so.

One poster on Slashdot speculated, like many others, that enough people will view the source code to make it difficult for developers to remain disassociated from it.

"It will be essentially impossible for anyone to do virgin development on windows-like features for anything, as the information on precisely what the Windows version does will only be two steps of association from the programmer," the poster wrote.

Perhaps most at risk is the open-source community and particularly Linux, which are built on the trust among code contributors that none has breached other software copyrights in their development work, said Mark Radcliffe, a partner at law firm Gray Cary, in Palo Alto, Calif.

"The opportunity to give Microsoft an enormous hammer over the open-source community is just waiting there," he said.

To read Linux & Open Source Center Editor Steven J. Vaughan-Nichols take on viewing the stolen code, click here.

By viewing the Windows source code, open-source and commercial programmers alike would raise the question of whether they used any of the code directly in their own work or if the works were "substantially similar" in their organization or structure, Radcliffe explained. Either could be enough for claims of a copyright violation.

Next Page: Copyright Infringement Isnt the Only Risk

Copyright Infringement Isnt the

Only Risk">

But copyright infringement isnt the only risk. Those viewing the Windows code also could face charges that they violated trade secrets and infringed on software patents, legal experts said.

Prosecuting a trade secret violation against a programmer for viewing the source code, as opposed to disclosing it, could be tough. The law is still murky in how it deals with trade secrets disclosed over the Internet, Radcliffe said, but the legal threat still is a real one for developers.

A patent infringement claim, though not necessarily triggered because of the source code disclosure, is another legal weapon Microsoft could add to its arsenal, Radcliffe said.

Radcliffe expects Microsoft to aggressively target programmers who have accessed the code, possibly similar to the way the recording industry went after individuals downloading copyrighted music. Those posting the code on their Web sites and most actively sharing it are the most likely targets.

Judges also are likely to sympathize with Microsoft in such cases given their distaste for the theft of copyrighted information, Radcliffe said.

"Its highly risky and youre painting a big bulls eye on your forward," Radcliffe said of developers viewing the Windows source code. "How much do you want to roll the dice?"

While Microsoft would not say whether it planned any specific legal action against programmers, it appears to be taking a tough stance. A company spokesman said in a statement on Friday that the company "will take all appropriate action against anyone who violates its intellectual property."

"Microsoft has not authorized the release of this code, and any use of it – including to study how it is built – is illegal," the spokesman said.

Even with legal threats Microsoft faces an uphill battle in stopping the dissemination of the source code, which has been shared through peer-to-peer networks and posted on Web sites.

"Its a trade secret," Albert said, "but it will be difficult for Microsoft to put the genie back in the bottle."

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