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    Home IT Management
    • IT Management

    Curious Programmers Face Legal Tangles with Leaked Windows Code

    By
    Matthew Hicks
    -
    February 14, 2004
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      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.

      /zimages/6/28571.gifTo read eWEEK.com 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.”

      Matthew Hicks
      As an online reporter for eWEEK.com, Matt Hicks covers the fast-changing developments in Internet technologies. His coverage includes the growing field of Web conferencing software and services. With eight years as a business and technology journalist, Matt has gained insight into the market strategies of IT vendors as well as the needs of enterprise IT managers. He joined Ziff Davis in 1999 as a staff writer for the former Strategies section of eWEEK, where he wrote in-depth features about corporate strategies for e-business and enterprise software. In 2002, he moved to the News department at the magazine as a senior writer specializing in coverage of database software and enterprise networking. Later that year Matt started a yearlong fellowship in Washington, DC, after being awarded an American Political Science Association Congressional Fellowship for Journalist. As a fellow, he spent nine months working on policy issues, including technology policy, in for a Member of the U.S. House of Representatives. He rejoined Ziff Davis in August 2003 as a reporter dedicated to online coverage for eWEEK.com. Along with Web conferencing, he follows search engines, Web browsers, speech technology and the Internet domain-naming system.
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