Associating Linux and Windows?

2.3 Associating Linux and Windows?

One of the reasons blocking the adoption of Linux by the mass market is the lack of use of a new kind of OS, which would go with different types of applications. Several open source projects aimed at associating Linux and Windows: in October 2001, former MP3.com CEO Michael Robertson created Lindows.com, a commercial Website distributing Lindows Operating System supposedly enabling customers to run either Linux or Windows applications on their PCs. He bet that customers are ready for a system allowing more flexibility.⁶¹ Robertson hoped to take advantage of the restrictions named 'activation feature'⁶²: XP has indeed been released with even stricter licensing terms than its predecessors in order to reduce piracy. In particular, to install MS Windows XP more than twice, even on the same machine, or to do major changes to the Operating System, the user needs to seek an authorisation from Microsoft. This may prompt more people to look for another Operating System.

Similarly, the WINE project aims at bringing MS and Linux together: it is a layer of software which acts as a translator between Unix and Windows⁶³. This would allow users to run solely Linux with the applications they like under Windows. Wine would provide the best of open and closed source, but its development is not finished yet. Despite their statement that Linux will never be able to compete against Windows since it is not "in the business interest of the end-user"⁶⁴, Microsoft seemed quite worried about this initiative. And in March 2002, an installation project called Crossover Office succeeded -ahead of WINE- in making most of the applications from MS Office available under Linux.⁶⁵ According to an attorney in charge of the matter, "the licensing terms of Microsoft Office does not prevent the user to run the applications from another operating system than Windows, provided that the copy of MS Office ran was legally purchased.⁶⁶ The potential for software from the 'commercial model' and the 'open source' model is now being developed.

Part 3. The legal limits of open source licenses force the creation of customised licenses.

3.1 Using licenses raise legal problems

The novelty of the open source movement and, overall, the lack of "physical" organisation in charge of such software had limited the number of lawsuits until the current hot attack by SCO against Linux. It may be the very first legal test of the GPL license. A software company selling Unix Operating System, SCO argues that some of the lines of source code of its Unix software have been included in the kernel of Linux and seek compensation from all Linux users for it. Last year, they especially filed a first lawsuit against IBM, one of the strong supporters of Linux asking for $5bn of compensation. However, they refused to give away this source code as they wait for the court to designate an independent expert. They have also warned other Linux users of lawsuits. In parallel, they have opened an online-ordering website for companies willing to license Linux. Novell, the former owner of Unix system, undermined the lawsuit claiming that, when SCO purchased Unix from them, the agreement did not include the right to control “derivative work”, i.e. subsequent code based on Unix source code. In March 2004, SCO filed other lawsuits against DaimlerChrysler and AutoZone. It will be interesting to pay attention to the development of this lawsuit: some companies are starting to pay licenses to SCO, considering that their claim might be right, in the way that it is virtually impossible to prove the contrary (!). That is a strange way of reversing the burden of proof…

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  In May 1998, the company Cache Computing released the source code of InfiniteOS, an open source alternative Operating System to Mac OS, under one free software license, the Berkeley Software Development License. Elements of this system turned out to be originally components of Linux Operating system, posted by a programmer who did not mention that they were from Linux. But Linux was released under the GPL. And the GPL is viral; therefore, any inclusion of bits of code under GPL in a software prevents this software from being released under another license. Developers argued that Cache Computing did not give appropriate credit to the copyright of the original work. The company apologised and argued that it was not aware that the bits of source code were parts of the code of Linux. Some conclusions can be drawn from there: because nobody is responsible for the development of the software, bits of the source code could be infringing without the distributor knowing it and the latter could be 'trapped' in all good faith. This point is also important in the SCO case⁶⁷. Another point is that the GPL license -despite its 'relative' complexity- does tend to supplant other licenses because of its strict terms -allowing part of its code to be used in other free code on the sole condition that this other code is GPL'd too.⁶⁸ This is probably the price to pay to get the 'free software' spirit going, it could seem quite abusive.
  

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  This is the case of the MPEG4 Video codec, an open source software, which was extensively copied by a software company, Sigma Designs. The open source team, which worked on the project, claimed that the software was infringing the GPL license. They reached a settlement before it went to court. The difficulty in this case is to find out about the infringing bits of code as the reverse engineering is forbidden except for interconnection purposes. So, proprietary software companies can easily include bits of open source code in a closed source program.
  
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  Another requirement of the GPL is that the code is released to all users. In September 1999, Corel released a 'beta testing' version of Corel Linux to a limited number of developers. This Corel Linux is supposed to be a consumer version of Linux. This partial release of the source code provoked the indignation of the open source community, which argued that the GPL was not changeable and that it made it compulsory to release freely the code to the whole public. Corel argued that the agreement they signed with the developers mainly distinguished between its own proprietary code⁶⁹ and the publicly available source code of Linux⁷⁰. A spokesman for Corel added that "all [they] were doing was mainly to involve third-party testers before they release their own improvement of the code". The rationale of those tests lies in the fact that, "as a commercial company, [they] cannot afford to release a code which would not be satisfying"; they have to be careful "about their reputation, their shareholders". Indeed, small companies do not have always the time and skills to test all their code themselves. As a result, it might be that the GPL license is quite difficult to handle for small companies. The option of having a specific license for 'beta testing' should be considered. The three formers cases gave solely rise to concerns from the open source community but the matter was sorted out without lawsuits.
  

On the opposite, when a commercial company found itself in contact with allegedly infringing open source software, the matter was brought to court and resulted in a very interesting case even though it failed to test the GPL license as it could have.

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  “Cyber Patrol” is a censorware, i.e. a software preventing from accessing certain offensive and unsuitable websites. Two cryptoanalysts, Eddy Jansson from Sweden and Matthew Skalla from Canada found out that some of the websites forbidden by Cyber Patrol were absolutely not offensive⁷¹, but that they were forbidden because they opposed the technology of censorware. In 1999, they posted on the Swedish provider Scandinavia Online the source code and executable of the program CPHack, which allowed to browse and view the blacklist of Cyber Patrol. In March 2000, the owner of Cyber Patrol, Mattel Microsystems, a subsidiary of the toy giant Mattel, filed lawsuits in Canada and in Sweden and got a worldwide temporary injunction against from US Federal judge E. Harrington for infringement of US copyright law.⁷² This injunction was meant to apply as well to "mirror websites", which linked to the CPHack site or posted its code. As a result, the programmers of CPHack handed over their copyrights to Mattel as a settlement of the lawsuit. Then Mattel tried to enforce those rights to have CPHack erased from the Internet. However, problems arose: the GPL terms make it impossible to revoke the license. Indeed, clause 7 of the Terms and Conditions of the GPL license states: “if, as a consequence of a […] court judgement, […] conditions are imposed on you that contradict the conditions of the License, they do not excuse you from the conditions of this License”.⁷³ Therefore, CPHack was still under GPL⁷⁴ license, which means that the users own the exclusive rights of the developers. The deal between Mattel and the developers was not valid as the latter did not own the copyright anymore. It has escaped the developers’ control and Mattel threatened them for 'fraud'.⁷⁵
  

Then, the American Civil Liberties Union appealed of the judgement in favour in Mattel. This judgement of the Court of Appeal found the 'mirror websites' "non parties" to the judgement⁷⁷, therefore the injunction did not apply to them and they could freely post the source code of CPHack.exe on their websites. This underlines one of the limits of the GPL license: if one of the programs released under the license is found infringing, every user has the right to copy and distribute the infringing software (just like in the public domain, but with the high-speed distribution channels of the open source community). This potential abuse could occur for most of other open source licenses as well: as shown, the loss of control of the copyrights falls into a legal loophole!

More than this particular aspect of exclusive rights, the philosophy of Stallman can have a serious impact on copyright lawsuits. Open source takes advantage of one aspect copyright law to give the freedom to the users of the software and it can destroy the way this very same copyright law is now applied concerning software. Indeed, when deciding of non-literal copyright infringement in a computer program, evidence of access to the source code of the program needs to be proved -along with presence of copyrighted elements in the infringing software. In open source, the step of access to the source code is deleted as it is free! Therefore, the sole requirement for copyright infringement in 'free software' would be the presence of similar copyrighted elements in both software. The tests designed to decide of this stage need to be more precise than the “Whelan” test; otherwise, lawsuits will blossom.