*   Harvard Law School LL.M. 1999; Vienna University School of Law Dr. Iur. 1997; Vienna University School of Law Mag. Iur. 1996. More information is available at the author’s website, located at http://www.strasser.priv.at/mathias. The author would like to thank Anusha Rasalingam for her helpful comments as well as Erin Davis and Keitha Macdonald for their valuable assistance in connection with revising and editing the Article.

1   Under currently applicable law, computer software is eligible for copyright, patent, and trade secret protection. See JAY DRATLER, JR., INTELLECTUAL PROPERTY LAW: COMMERCIAL, CREATIVE, AND INDUSTRIAL PROPERTY § 1.01[3], at 1-9 (2000).

2   See, e.g., Donald S. Chisum, The Patentability of Algorithms, 47 U. PITT. L. REV. 959 (1986).

3   See, e.g., Anthony L. Clapes et al., Silicon Epics and Binary Bards: Determining the Proper Scope of Copyright Protection for Computer Programs, 34 UCLA L. REV. 1493 (1987); Dennis S. Karjala, Copyright, Computer Software, and the New Protectionism, 28 JURIMETRICS J. 33 (1987); Peter S. Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 STAN. L. REV. 1045, 1050 (1989); Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 HARV. L. REV. 977 (1993); A. Samuel Oddi, An Uneasier Case for Copyright than for Patent Protection of Computer Programs, 72 NEB. L. REV. 351 (1993).

4   See, e.g., Pamela Samuelson, Benson Revisited: The Case Against Patent Protection for Algorithms and Other Computer Program-Related Inventions, 39 EMORY L.J. 1025 (1990); Pamela Samuelson, Randall Davis, Mitchell D. Kapor, & J.H. Reichman, A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308 (1994).

5   See, e.g., Barbara Darrow, Apple Releases Darwin, QuickTime Code, TECHWEB NEWS, at http://www.techweb.com/wire/story/SIW2000/TWB20000405S0011 (Apr. 5, 2000); Michael J. Martinez, Open Source Dungeon, ABC NEWS, at http://www.abcnews.go.com/sections/tech/DailyNews/dungeons000707.html (July 7, 2000); Matthew Rothenberg, Open-Source Fans Close Ranks, ZDNET NEWS, at http://www.zdnet.com/zdnn/stories/news/0,4586,2560429,00.html (May 2, 2000); Marcia Savage, Intel Open Sources Security Architecture, CRN, at http://www.techweb.com/wire/story/TWB20000410S0021 (Apr. 10, 2000); Deborah Solomon, Could Linux Outdo Windows?, USA TODAY, available at http://www.usatoday.com/life/cyber/tech/review/crg983.htm (Mar. 9, 2000); Aaron Weiss, Open Source Gets Mainstream, INFORMATION WEEK, at http://www.techweb.com/wire/story/TWB20000413S0010 (Apr. 14, 2000).

6   The Commission of the European Communities has initiated a research program on "libre software" to evaluate the impact of open source software on the European economy. See EUROPEAN COMMISSION, European Initiatives on Free Software, at http://www.ispo.cec.be/topics/eifs (last modified Sept. 11, 2000). See also Richenda Gillespie, German Federal Government To Support Open Source Software, INTERNETNEWS, at http://www.internetnews.com/intl-news/article/0,2171,6_408271,00.html (July 5, 2000) (quoting Siegmar Mosdorf, the then-Secretary of State of Germany as saying "I am convinced that open source development can form the European base model in the information age.").

7   See Richard Richtmyer, VA Linux Rockets On Debut, CNNFN, at http://cnnfn.cnn.com/1999/12/09/technology/linux/ (Dec. 9, 1999). The VA Linux IPO made history as the most successful IPO in U.S. capital markets to date. Shares of VA Linux climbed from an offer price of $30 up to a high of $320 before closing at $239.25, corresponding to a 690% increase during the first day of trading. See id. The stock price of VA Linux later plummeted, reaching a low of $26.875 in April 2000, and has been performing similarly to other companies of the tech sector of the stock market since.

8   Richard Stallman, The GNU Operating System and the Free Software Movement, in OPEN SOURCES: VOICES OF THE OPEN SOURCE REVOLUTION, 53, 56 (Chris DiBona et al. eds., 1999) (claiming that users of computer programs should be completely free to run, modify, and redistribute copies of these programs, whether in their original or in a modified form).

9   LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE (1999).

10   See 17 U.S.C. § 101 (1995) (defining "computer program" as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result"); see also DAVID BENDER, COMPUTER LAW 2-115 (2000) (defining "software" as a combination of three elements, namely "the program, the data base, and documentation" and discussing various definitions of these concepts developed by standard bodies and courts).

11   BENDER, supra note 10, at 2-114; DRATLER, supra note 1, § 5.02[1], at 5-18.

12   See Apple Computer v. Franklin Computer, 714 F.2d 1240 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033; Christopher S. Cantzler, State Street: Leading the Way to Consistency for Patentability for Computer Software, 71 U. COLO. L. REV. 423, 424 (2000).

13   At the risk of boring the technologically savvy reader, this section discusses the differences between source code and object code at some length, thereby paving the way for an analysis of the legal issues.

14   Different types of computers understand different machine languages.

15   BENDER, supra note 10, at 2-125.

16   Id. The statement that object code is directly executable on computers is not fully accurate, since to become executable, most object code first has to be linked with one or more so-called libraries, which contain prefabricated code segments that many computer programs employ to perform certain standardized tasks. But this does not blur the distinction between source code and object code.

17   Apple, 714 F.2d at 1243; BENDER, supra note 10, at 2-10. One of the most popular compilers among software developers is the GNU Compiler Collection ("GCC"), which is maintained by the GCC Steering Committee, available at http://www.gnu.ai.mit.edu/software/gcc/gcc.html (last visited Aug. 1, 2000). GCC is one of the most prominent examples of a successful open source software project.

18   The practical obstacles to reverse engineering are not always fully appreciated in the legal literature. See DRATLER, supra note 1, § 1.02[5], at 1-18, n. 42 (acknowledging merely that "[object code] is . . . difficult even for trained programmers to decipher."); Samuelson et al., supra note 4, at 2336 (describing reverse engineering as "[a] . . . difficult, but nonetheless workable, way to gain access to program internals."). The truth is that in today's world, reverse engineering commercial software is virtually impossible.

19   See, e.g., http://www.decompiler.net (last visited Aug. 1, 2000).

20   Apple, 714 F.2d at 1243; Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 697 (2d Cir. 1992) (explaining the process of software development); BENDER, supra note 10, at 2-118.2 (providing a detailed overview of the development process, from defining the problem, to creating a flowchart, to drafting the "source code" in a programming language, to finally translating it into "object code"). See generally Paul Vixie, Software Engineering, in OPEN SOURCES: VOICES OF THE OPEN SOURCE REVOLUTION, at 91 (Chris DiBona et al. eds. 1999) (contrasting the development of proprietary software with the development of open source software).

21   The functionality of a typical machine language instruction is limited to such tasks as adding two numbers or clearing the accumulator. See BENDER, supra note 10, § 2.06[3][c], at 2-125.

22   Id. (explaining that since the devices that are used to represent information in computers are inherently bistable, it is most convenient to manipulate data with systems that use two numbers).

23   BENDER, supra note 10, § 2.06[3][c], at 2-126.

24   See, e.g., Apple, 714 F.2d at 1243.

25   The first high-level languages were developed in the 1950s. BENDER, supra note 10, § 2.06[3][c], at 2-127.

26   Apple, 714 F.2d at 1243.

27   Id.

28   Id.

29   Unlike ordinary consumers, software developers may have additional needs, such as studying how the software works.

30   Different considerations may apply with respect to companies that have full-scale in-house information technology departments. Such companies may want access to the source code of software they buy to adapt the software to their needs and fix bugs as they are discovered. Even in this case, however, a software producer may still have an incentive to sell only the object version of the software to secure additional business in connection with updating the software for itself.

31   See Robert W. Gomulkiewicz & Mary L. Williamson, A Brief Defense of Mass Market Software License Agreements, 22 RUTGERS COMPUTER & TECH. L.J. 335, 359-60 (1996) (noting that source code is "information that may represent a company's most valuable business asset").

32   See infra Part I.B.3., for a discussion of trade secret law.

33   Gottschalk v. Benson, 409 U.S. 63, 65 (1972) (defining "algorithm" as a "procedure for solving a given mathematical problem" in a generic way so that "[f]rom the generic formulation, [computer] programs may be developed as specific applications.").

34   Trademark law, e.g., while covering distinctive words and symbols used to identify software, does not protect the functional aspects of a computer program.

35   Compare U.S. CONST., art. I, § 8, cl. 8 (empowering Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries") (emphasis added) with Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948) (confirming the long-established principle that laws of nature are not patentable).

36   U.S. CONST., art. I, § 8, cl. 8.

37   35 U.S.C. §§ 100-376 (2000).

38   35 U.S.C. §§ 101 (2000). Special types of patents are available for ornamental designs for articles of manufacture, see 35 U.S.C. §§ 171-173, and distinct and new varieties of asexually-reproduced plants, see 35 U.S.C. § 161-164.

39   Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (quoting S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952)).

40   Id.; Gottschalk v. Benson, 409 U.S. 63, 67 (1972).

41   Chakrabarty, 447 U.S. at 309; Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948). See generally DRATLER, supra note 1, § 2.02[2][a], at 2-15 (further discussing this judicial limitation to the scope of patentable subject-matter).

42   Gottschalk, 409 U.S. at 67.

43   See State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 851 (1999).

44   See DRATLER, supra note 1, § 2.02[c], at 2-20.55.

45   Gottschalk, 409 U.S. at 63.

46   Id. at 71-72.

47   Id.

48   See id. (observing that patenting the algorithm "would wholly pre-empt the mathematical formula").

49   Id. at 73 (noting that the patentability of software raises "considerable problems . . . which only committees of Congress can manage, for broad powers of investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain.").

50   Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

51   Parker v. Flook, 437 U.S. 584 (1978).

52   Id. at 590.

53   Id. (citing White v. Dunbar, 119 U.S. 47, 51).

54   Id. at 594.

55   Id. at 592 ("[t]his case must . . . be considered as if the principle or mathematical formula were well known.").

56   Diamond v. Diehr, 450 U.S. 175 (1981).

57   Id. at 198.

58   Id.

59   Id. at 208 ("[Diehr's and Lutton's (the respondents')] method of updating the curing time calculation is strikingly reminiscent of the method of updating alarm limits that Dale Flook sought to patent") and 210 ("[t]he essence of the claimed discovery in both cases was an algorithm that could be programmed on a digital computer.").

60   Id. at 211 (explaining that "[w]hat I believe does explain today's holding is a misunderstanding of the applicants' claimed invention . . .").

61   See DRATLER, supra note 1, § 2.02[2][b][i], at 2-18.

62   See, e.g., Application of Bergy, 596 F.2d 952, 959 (1979) (criticizing Parker v. Flook, 437 U.S. 584, and arguing that the Supreme Court had erroneously commingled "distinct statutory provisions that are conceptually unrelated.").

63   The Court of Customs and Patent Appeals developed the so-called Freeman-Walter-Abele ("FWM") test for detecting unpatentable subject-matter. See In re Abele, 684 F.2d 902 (C.C.P.A. 1982); In re Walter, 618 F.2d 758 (C.C.P.A. 1980); In re Freeman, 573 F.2d 1237 (C.C.P.A. 1978). But the test was not applied consistently, nor was it applied in all patent cases. See In re Meyer, 688 F.2d 789, 796 (C.C.P.A. 1982) (noting that the FWM test was not the only test used to detect unpatentable subject-matter); In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994) (explaining the confusion that the FWM test had created).

64   See State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1368 (Fed. Cir. 1998).

65   Id. at 1375. The CAFC's decision was anticipated by Alappat, 33 F.3d at 1526.

66   See DRATLER, supra note 1, § 2.02[2][b][iii][A], at 2-20.12, for a detailed analysis of the flaws of State Street Bank (noting that neither the number conversion algorithm in Gottschalk nor the algorithm for calculating alarm limits in Parker were held patentable, even though they led to useful and tangible results, and that even in Diamond where the algorithm for calculating a formula for a rubber curing process was considered patentable, the Court stated that insignificant post-solution activity will not transform an unpatentable principle into a patentable process).

67   See, e.g., AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999).

68   While the CAFC's decision in State Street Bank was denied certiorari by the Supreme Court, the Court has yet to pronounce itself on the "useful result" formula developed by the CAFC.

69   See infra I.B.2, for a discussion of copyright law, and infra Part I.B.3., for a discussion of trade secret law.

70   See, e.g., Cantzler, supra note 12, at 444; Carey R. Ramos & David S. Berlin, Three Ways to Protect Computer Software, 16 COMPUTER/L.R. 16, 21 (1999) ("[a] valid patent provides the strongest possible protection for computer software").

71   See 35 U.S.C. § 112 (2000). See generally DRATLER, supra note 1, § 2.04[1], at 2-74 (discussing the enablement doctrine and certain related doctrines provided by § 112 of the Patent Act, such as the definitiveness doctrine, the best mode doctrine, and the written description doctrine).

72   Id.

73   See Atlas Powder Co. v. E.I. Du Pont De Nemours & Co., 750 F.2d 1569, 1576 (Fed. Cir. 1984); W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1557 (Fed. Cir. 1983), cert. denied., 469 U.S. 851 (1984).

74   United States Gypsum Co. v. Nat'l Gypsum Co., 74 F.3d 1209, 1212 (Fed. Cir. 1996); Chemcast Corp. v. Arco Indus. Corp., 913 F.2d 923, 926 (Fed. Cir. 1990).

75   See 35 U.S.C. § 154(a)(2) (2000).

76   See Jonathan Zittrain, The Un-Microsoft Un-Remedy: Law Can Prevent the Problem That it Can't Patch Later, 31 CONN. L. REV. 1361, 1373 (1999) (arguing in favor of a five- to ten-year term for copyright protection of software).

77   U.S. PAT. AND TRADEMARK OFF., FEE SCHEDULE, available at http://www.uspto.gov/web/offices/ac/qs/ope/1999/fee2000.htm#patfee (last visited Aug. 1, 2000). As of Aug. 1, 2000, the filing of a patent application with the PTO cost $690, plus $78 for each independent claim in excess of three, $18 for each claim in excess of twenty, and $260 for multipally dependent claims; upon issuance of the patent, the patentee must pay a fee in the amount of $1,210, and additional fees ranging from $830 to $2,910 are payable at various points during the life of the patent for maintenance purposes.

78   See, e.g., Press Release, Association for the Promotion Of a Free Informational Infrastructure, Consensus of SMEs Against Software Patents at the German Ministry of Economy, available at http://swpat.ffii.org/penmi/bmwi-20000518/indexen.html (May 18, 2000) (describing that at a meeting hosted by the German Ministry of Economy, representatives of German software producers expressed their opposition to the application of patent law to information). The League for Programming Freedom, at http://lpf.ai.mit.edu, and Free Patents at http://www.freepatents.org, are two organizations whose declared goal is to protect the software industry against patents.

79   Diamond v. Diehr, 450 U.S. 175, 175 (1981).

80   See James Bessen & Eric Maskin, Sequential Innovation, Patents, and Imitation, at 3 (Working Paper, Mass. Inst. of Tech., Dep't of Econ.), available at http://www.researchoninnovation.org/patent.pdf (visited Aug. 1, 2000) (arguing that innovation in the software industry is sequential and complementary and that weak patent protection allowing imitation therefore promotes innovation, while strong patent protection inhibits it).

81   U.S. CONST., art. I, § 8, cl. 8.

82   REP. OF THE PRESIDENT'S COMM'N ON THE PAT. SYS., "TO PROMOTE THE PROGRESS OF . . . USEFUL ARTS" 13 (1966).

83   See, e.g., Bessen & Maskin, supra note 80, at 24, table 3 (showing that as of 1995, the top 10 holders of software patents were all large corporations: IBM, AT&T, Motorola, Xerox, HP, DEC, GE, Apple, Ford, and Kodak); RED HERRING, I'm gonna sue your ass, at http://www.herring.com/mag/issue66/news-sue.html (May 23, 2000) (noting that while deep-pocketed companies are able to devote substantial resources to patent portfolios, high-tech start-ups are vulnerable to infringement suits).

84   See Bessen & Maskin, supra note 80, at 28, fig. 4.

85   See Greg Aharonian, 17,500 Software Patents to Issue in 1998, INTERNET PATENT NEWS SERVICE, at http://www.flora.org/flora/server/comnet-www/1334 (October 19, 1998).

86   See Patricia A. Martone, Intellectual Property Protection for Computer Software - As Copyright Protection Narrows, Can Patents Fill the Gap?, in COMPUTER SOFTWARE PROTECTION 599, 612 (PLI Pat., Copyrights, Trademarks, & Literary Prop. Course Handbook Series No. 479, 1997).

87   Virtually all commercial software is protected by copyright law, but only some algorithms are protected by a patent.

88   17 U.S.C. §§ 101-810

89   See 17 U.S.C. § 102(a) ("[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . ."), and 17 U.S.C. § 102(b) ("[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . "); see also Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991) (holding that a white page telephone directory listing the names of all subscribers in alphabetical order does not involve originality and is therefore not copyrightable); Baker v. Selden, 101 U.S. 99, 100 (1879).

90   See NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS, Final Report and Recommendations (Library of Congress 1978) [hereinafter CONTU REPORT].

91   See Pub. L. No. 93-573, § 201, 88 Stat. 1873 (1974).

92   See Pub. L. No. 96-517, § 10, 94 Stat. 3015, 3028-3029 (1980).

93   See CONTU REPORT (recommending that the Copyright Act "be amended . . . to make it explicit that computer programs, to the extent that they embody the author's original creation, are proper subject matter of copyright . . . ").

94   See 17 U.S.C. § 101 (defining "computer program" as "a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result").

95   Id.

96   H. R. REP. NO. 94-1476 at 54 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5667.

97   Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 702 (2d Cir. 1992); Whelan Assocs. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1233 (3d Cir. 1986); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983).

98   For a discussion of the idea/expression dichotomy, see generally Nimmer on Copyright §2.01, 1-2 (2001).

99   See CONTU REPORT, <I>supra note 93, at 44.

100   Cf. Baker v. Seldon, 101 U.S. 99, 102 (1879) (noting, with respect to a book describing a system of bookkeeping, that "[t]o give the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, . . . [t]hat is the province of letters-patent, not of copyright.").

101   For a discussion of the scènes-a-faire doctrine, see generally Nimmer on Copyright, §13.03, 4-13.

102   See Altai, 982 F.2d at 710, where the court first discusses the scene-a-faire doctrine and then names "compatibility requirements of other programs with which a program is designed to operate in conjunction" as examples of factors dictated by external elements that should not be eligible for copyright protection.

103   Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902-903 (developing the levels of abstraction test and applying to a case); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54-55 (2d Cir. 1936), cert. denied, 298 U.S. 669 (applying the levels of abstraction test).

104   See Nichols, 45 F.2d at 121 ("[u]pon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out.").

105   Id.

106   Id.

107   Id.

108   See Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) ("[o]bviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.'").

109   DRATLER, supra note 1, § 5.01[2][c], at 5-12.

110   Whelan Assocs. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 1235.

111   Baker, 101 U.S. 99, 103 (1879).

112   Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

113   Whelan, 797 F.2d at 1222.

114   Id. at 1236.

115   Id.

116   Id.

117   Id.

118   Id. at 1238.

119   Id.

120   Id. at 1237.

121   Id. at 1238 n.34.

122   The problem with the test is not, as the court suggested, that it is hard to apply; rather, it is impossible to apply consistently. See Whelan, 797 F.2d at 1238 (dismissing the argument that the structure of computer programs is too vague a criterion for copyright law with the wholesale argument that "[e]ase of application is not . . . a sufficient counterweight to the considerations we have adduced on behalf of our position.").

123   Compare Broderbund Software, Inc. v. Unison World, Inc., 648 F. Supp. 1127, 1133 (N.D. Cal. 1986), with Plains Cotton Coop. Ass'n of Lubbock, Tex. v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1262 (5th Cir. 1987), cert. denied, 484 U.S. 821 (1987) (rejecting Whelan). Cf. Synercom Tech., Inc. v. Univ. Computing Co., 462 F. Supp. 1003, 1014 (N.D. Tex. 1978) (holding that the sequence of data on computer input formats is an idea, not an expression).

124   Computer Assocs. Int'l v. Altai, Inc., 982 F.2d 693, 705-706 ("Whelan's approach to separating idea from expression in computer programs relies too heavily on metaphysical distinctions and does not place enough emphasis on practical considerations.").

125   Id. at 705.

126   Id. at 706-711.

127   Id. at 710.

128   Any storage media is sufficient for fixation. See 17 U.S.C. § 102(a) (providing that works of authorship may be affixed in any "tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.").

129   Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

130   Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 1233 (3d Cir. 1986); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1249 (3d Cir. 1983).

131   Apple, 714 F.2d at 1249.

132   See 17 U.S.C. § 101 (defining "derivative work" as any "work based upon one or more preexisting works, such as a translation . . . " in any "form in which a work may be recast, transformed, or adapted"). See generally DRATLER, supra note 1, § 6.01[2][c], at 6-10 (discussing the relationship between derivative works and the underlying originals).

133   See 17 U.S.C. § 106(2) (mentioning the exclusive right "to prepare derivative works based upon the copyrighted work" as one of the author's exclusive rights with respect to its work).

134   See DRATLER, supra note 1, § 6.01[2][c][iii], at 6-12.

135   See 17 U.S.C. § 106(2).

136   See text accompanying notes 12-17 supra.

137   Apple Computer, Inc. v. Frankling Computer Corp., 714 F.2d 1240, 1243 (3d Cir. 1983).

138   See Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345; see also Woods v. Bourne Co., 60 F.3d 978, 993 (2d Cir. 1995). While the 9th Circuit has held that an author who brings an action for infringement of its exclusive right to prepare derivative works need not show that the allegedly infringing work is original, it does require that an author who seeks copyright protection for a derivative work prepared by him or her make a showing of originality. See Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 967-68 (9th Cir. 1992).

139   See text accompanying notes 12-18 supra.

140   BENDER, supra note 10, § 3.03[2], at 3-23.

141   Feist, 449 U.S. at 362.

142   Id. at 340.

143   See text accompanying notes 12-27, supra, for a discussion of the three fundamental differences between source code and object code: intelligibility to human minds, functionality, and the fact that compilation is a one-way process.

144   17 U.S.C. § 117(a) (2000).

145   17 U.S.C. § 109 (2000). See generally For a discussion of the first sale doctrine, see generally Nimmer on Copyright, §8.12, 4-13 (2000); DRATLER, supra note 1, § 6.01[3][b], at 6-16 (tracing the roots of the first sale doctrine to the common law's aversion to restraints of alienation of chattels).

146   See 17 U.S.C. § 117(a) (2000).

147   See 17 U.S.C. § 109(b) (2000).

148   See H.R. REP. NO. 735, 101st Cong., 2d Sess. 8 (September 21, 1990), reprinted in 1990 U.S. Code Cong. & Admin. News 6935, 6939 (showing a concern that the first sale doctrine might facilitate unauthorized copying).

149   By contrast, software producers may not combine trade secret protection with patent protection, since, as discussed, the enablement doctrine of patent law requires full disclosure. See infra Part I.B.1.

150   See 17 U.S.C. § 301-302. See generally DRATLER, supra note 1, § 6.04, at 6-77 (offering a detailed discussion of the various types of copyright terms).

151   Zittrain, supra note 76, at 1373 (noting that in 2089, Microsoft's Windows 95 will enter the public domain, preceded five years by Microsoft's MS-DOS and, ten years earlier, Radio Shack's TRS-80 operating system).

152   Henry Hope X-Ray Prods., Inc. v. Marron Carrel, Inc., 674 F.2d 1336, 1339 (9th Cir. 1982); DRATLER, supra note 1, § 4.01[1], at 4-4.

153   See DRATLER, supra note 1, § 4.01[3][b], at 4-12 & n.72 for a list of the jurisdictions in which the UTSA applies.

154   UNIFORM TRADE SECRETS ACT 1 (4), 14 U.L.A. 433, 438 (2000).

155   See DRATLER, supra note 1, § 4.01[3][a], at 4-8 (discussing the origins of the common law of trade secrets).

156   Id. at 4-9 & n.51, § 4.01[3][b], at 4-13.

157   RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39 (1995).

158   DRATLER, supra note 1, § 4.02[1][c], at 4-19 to 4-20, § 4.03, at 4-37 et seq.

159   RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39, cmt. g (1995).

160   See, e.g., Avtec Sys. v. Pfeiffer, 21 F.3d 568, 575 (4th Cir. 1994); Computer Assocs. Int'l v. Altai, Inc., 982 F.2d at 719-721 (upholding and remanding a claim based on misappropriation of trade secrets in computer programs). See generally DRATLER, supra note 1, § 4.02[3], at 4-24 n.77 (providing a comprehensive overview of federal and state court decisions).

161   Avtec, 21 F.3d at 575.

162   RTE Corp. v. Coatings, Inc., 84 Wis. 2d 105, 116 (1978) (noting that no trade secret exists if the information is "of general knowledge within an industry."). See generally DRATLER, supra note 1, § 4.03[1][b], at 4-47.

163   See Rivendell Forest Prods., Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1046 (10th Cir. 1994) (noting that software may be eligible for trade secret protection even if it contains elements that are in the public domain provided that there is an "effective, successful, and valuable integration of the public domain elements" that gives the software developer a "competitive advantage"); Jostens, Inc. v. Nat'l Computer Sys., 318 N.W.2d 691, 699 (Minn. 1982) ("generally known computer elements may gain trade secret protection from the nature of their combination").

164   60 Fed. Reg. 33464-33507.

165   48 C.F.R. § 252.227-7013(a)(3).

166   Avtec, 21 F.3d 568 at 575.

167   Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 663.

168   In Trandes, the court dismissed this argument as having no merits. Id at 662. It should be noted, however, that the facts of the case were slightly unusual. In particular, plaintiff, instead of selling its proprietary Tunnel System software to consumers, provided them with services based on that software. Therefore, Trandes did derive economic value from the secrecy of the software's object code as much as it derived value from the overall functionality of the software. In the case of companies that sell software as a product, however, the fact that the object code of that software is to be considered secret (assuming that to be the case, contrary to the position advocated in the text) does not create any value in addition to the software's functional value.

169   As briefly alluded to, the Department of Defense has promulgated special regulations that afford computer software developed by private entities under federal defense contracts trade secret protection provided that the software qualifies as a "commercial item." See DRATLER, supra note 1, § 4.08[1], at 4-157, for a detailed discussion of the regulations. These regulations, however, have only a limited scope.

170   Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475-76 (1974).

171   DRATLER, supra note 1, § 4.04[2][c], at 4-84.

172   Doctrinally, this is extremely important because it counterbalances the lack of a disclosure requirement in trade secret law, thereby drawing a clear dividing line to patent law, which, while prohibiting reverse engineering, requires that trade secrets embedded in a patented invention be disclosed to the public. See DRATLER, supra note 1, § 4.06[1], at 4-143 (discussing the relationship between patent and trade secret law).

173   See text accompanying notes 12-18 supra.

174   Whelan Assoc. v. Jaslow Dental Lab, Inc., 797 F.2d 1222, 1222 (3d Cir. 1986).

175   State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1368 (Fed. Cir. 1998).

176   See supra Part I.B.1 for a discussion of the CAFC's problematic decision in State Street Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998).

177   Presumably, this would be the approach most favored by the open source community. Cf. Stallman, supra note 8, at 66 (describing software patents as "[t]he worst threat").

178   See text accompanying notes 80-84 supra.

179   See supra Part I.B.1 for a discussion of the Supreme Court's decisions in Gottschalk v. Benson, 409 U.S. 63 (1972), Parker v. Flook, 437 U.S. 589 (1978), and Diamond v. Diehr, 450 U.S. 175 (1981).

180   A particularly instructive example that has received a great deal of publicity is Amazon's one-click-patent (U.S. patent 5,960,411). The patent, the text of which (along with annotations by Richard Stallman) is available at http://www.fsf.org/philosophy/amazonpatent.html (last visited Aug. 1, 2000), claims the widespread e-commerce technique of storing a cookie on the hard disk of a consumer's computer for the purpose of providing the company with information on the purchaser when they return to the company's website at later points.

181   See UNITED STATES PATENT AND TRADEMARK OFFICE, AUTOMATED FINANCIAL OR MANAGEMENT DATA PROCESSING METHODS (BUSINESS METHODS) (2000), at 7, available at http://www.uspto.gov/web/menu/busmethp/whitepaper.pdf (last visited Feb. 3, 2001).

182   See RED HERRING, supra note 83 (quoting Craig Johnson, Chairman of the Venture Law Group as saying that "[t]he patent office is so far behind the curve.").

183   See UNITED STATES PATENT AND TRADEMARK OFFICE, supra note 181, for a discussion of reform efforts that are currently underway.

184   See text accompanying notes 13-20 supra.

185   Cf. Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 842 (Fed. Cir. 1992) (explaining the permissibility of reverse engineering under the Copyright Act on the ground that "[a]n author cannot acquire patent-like protection by putting an idea, process, or method of operation in an unintelligible format and asserting copyright infringement against those who try to understand that idea, process, or method of operation."). Since reverse engineering of most software's object code is virtually impossible, the implication of the court's statement is that copyright protection for object code is patent-like.

186   See supra Part I.B.3.

187   See supra Part I.B.2.

188   Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991); Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 842 (Fed. Cir. 1992).

189   Cf. Samuelson et al., supra note 4, at 2323 ("the value of a program . . . lies in its behavior.").

190   "Open source" is not the term under which the movement was originally known. See text accompanying note 213, infra, for a discussion of how the term "open source" evolved.

191   In the following, the terms "open source software," "free software," and "open code" will be used synonymously. Similarly, the term "closed source software" will be used interchangeably with "commercial software," "proprietary software," or "closed code." Once again, this equation may not be entirely accurate. While the open source movement has developed definitions of the terms "open source software" and "free software" that are generally accepted among open source software developers, there is no official definition of "open code." The term "open code" appears to have been coined by Larry Lessig, who uses it in his writings in order to avoid entering into the ideological debate between "politically correct" open source developers, such as Richard Stallman, on the one hand, and Eric Raymond and his followers on the other hand, who try to sell the open source philosophy to software industry executives.

192   Josh McHugh, For the Love of Hacking, FORBES, Aug. 10, 1998, at 94, 96 (explaining that usually "you just get the 1s and 0s.").

193   The various official definitions of open source software differ in details but all incorporate the requirement that the software be mostly free of legal restrictions and that its source code be available to the public. See Free Software Foundation, What Does Free Mean? or What Do You Mean by Open Software?, available at http://www.debian.org/into/free (last visited Aug. 1, 2000); Open Source Initiative, The Open Source Definition, available at http://www.opensource.org (last visited Aug. 1, 2000). See generally Bruce Perens, The Open Source Definition, in OPEN SOURCES, at 171 (Chris DiBona, et al eds. 1999).

194   See, e.g., Robert Young, Giving It Away: How Red Hat Software Stumbled Across a New Economic Model and Helped Improve an Industry, in OPEN SOURCES, at 113 (Chris DiBona, et al eds. 1999) (defining "Open Source . . . as software that includes source and a free license.").

195   The term "hacker" does not mean the same as "cracker." Stallman, supra note 8, at 53 (defining the term "hacker" as "[s]omeone who loves to program and enjoys being clever about it."). See also Eric Raymond, A Brief History of Hackerdom, in OPEN SOURCES, at 20 (Chris DiBona et al eds. 1999) (noting that MIT programmers were the first to use the term "hacker").

196   Stallman, supra note 8, at 53 (reporting that when he started to work at MIT in 1971, the software-sharing community which he became a part of, had already existed for many years); Raymond, supra note 195, at 19 (noting that the "self-conscious technical culture of enthusiast programmers" has developed more or less continuously since the invention of the ENIAC computer in 1945).

197   See Raymond, supra note 195, at 20.

198   See infra Part I.B.3., for a discussion of trade secret law.

199   Cf. BENDER, supra note 11, at 1-18.10 (citing various sources to contrast the situation in 1972, when the total number of computer programs was 60 and each had lifetime revenues of at least $1 million, with that in 1979, when there was one program with life time revenues over $100 million, four with more than $50 million each, ten with $30 million, 17 with $20 million, 33 with $10 million and 88 with $5 million).

200   Stallman, supra note 8, at 53 (describing how in 1981, a company called Symbolics hired away most of the hackers employed by MIT's Artificial Intelligence Lab).

201   Id. at 55 (describing the GNU Project). Stallman's account of the early 1980s, when the GNU Project was launched, is available at http://www.fsf.org/gnu/thegnuproject.html (last visited Aug. 1, 2000).

202   Stallman, supra note 8, at 57 (describing his concern that if he had remained an employee of MIT, MIT might have laid claim to any software that he wrote using MIT's facilities--note: MIT could have based its claim on the works-made-for-hire doctrine, which has its legal basis in § 201(b) of the Copyright Act. 17 U.S.C. § 201(b)). See DRATLER, supra note 1, § 6.02[3][b], at 6-56, for a discussion of this doctrine.

203   The term "GNU" stands for "GNU's not Unix," following a popular tradition among hackers to use recursive acronym. Stallman, supra note 8, at 56.

204   GNU Manifesto, available at http://www.fsf.org/gnu/manifesto.html (last visited Aug. 1, 2000).

205   Id.

206   Stallman, supra note 8, at 60.

207   Id. at 57 (rejecting the term "open" because it is wrong or has some other disadvantage).

208   Id. at 54 (lamenting the fact that with the onset of commercial software, "the first step in using a computer was to promise not to help your neighbor. A cooperating community was forbidden.").

209   See, e.g., id., at 54-55 (noting that the legal framework for software applicable at any given point is directly related to the question of what "kind of society we are allowed to have" and justifying the need for open source software on the argument that "helping other people is the basis of society.").

210   Chris DiBona, Sam Ockman & Mark Stone, Introduction, in OPEN SOURCES, at 1, 3 (Chris DiBona, et al eds. 1999); Perens, supra note 193, at 173.

211   The OSI maintains a website at http://www.opensource.org (last visited Aug. 1, 2000). A brief history of the OSI is available at http://www.opensource.org/history.html (last visited Aug. 1, 2000).

212   The OSI was founded partly in response to Netscape's announcement on Jan. 22, 1998 to make the source code of its Navigator web browser publicly available. See http://www.netscape.com/newsref/pr/newsrelease558.html (last visited Aug. 1, 2000). Netscape's action was perceived as a window of opportunity to sell the philosophy to the business world.

213   See Perens, supra note 193, at 173.

214   See Stallman, supra note 8, at 61 (emphasizing that "[t]he free software philosophy rejects a specific widespread business practice, but it is not against business . . . ." and suggesting that software producers might make money by distributing free software collections, by offering advice, and by fixing bugs).

215   Stallman, supra note 8, at 57 (discussing "unfettered" as an alternative).

216   Id. at 56 (explaining that free software is "about freedom").

217   Id. Other open source developers equally link legal with factual openness. See, e.g., Perens, supra note 193, at 172 (mentioning "the right to make copies" of a piece of software together with "the right to have access to the software's source code.").

218   Stallman, supra note 8, at 54 (rejecting the "unstated assumption . . . that the only important thing about software is what jobs it allows you to do.").

219   In practice, this particular problem is unlikely to arise since most consumers are computer laymen, and manufacturers of computer equipment, in recognition of this fact, make an effort to ensure that their distributions include device drivers for the most common operating systems.

220   This applies not just to the members of the open source community, who typically know how to modify software, but also companies with IT departments of their own.

221   See Stallman, supra note 8, at 59.

222   See supra Part I.B.2.

223   See Stallman, The X Windows Trap at http://www.fsf.org/philosophy/x.html (last visited Aug. 1, 2000).

224   See Stallman, supra note 223, (advising software developers that "[w]hen a businessman tempts you with 'more popularity', he may try to convince you that his use of your program is crucial to its success. Don't believe it! If your program is good, it will find many users anyway . . . ").

225   See Stallman, What is Copyleft at http://www.fsf.org/copyleft/copyleft.html (last visited Aug. 1, 2000); see also Teresa Hill, Fragmenting the Copyleft Movement: The Public Will not Prevail, 1999 UTAH L. REV. 797.

226   Stallman, supra note 8, at 59.

227   See Chris DiBona, Sam Ockman & Mark Stone, Appendix B, in OPEN SOURCES, at 255 (Chris DiBona et al. eds. 1999), available at http://www.fsf.org/copyleft/gpl.html (last visited Aug. 1, 2000), and http://www.fsf.org/copyleft/lesser.html (last visited Aug. 1, 2000), for the text of the GNU Lesser General Public License. § 1 of the GNU-GPL provides that "[t]his License applies to any program or other work which contains a notice placed by the copyright holder saying it may be distributed under the terms of this General Public License."

228   Cf. Stallman, supra note 8, at 56 (describing what he considers the four fundamental freedoms of free software: the freedoms to run, modify, and redistribute software, and to distribute modified versions of the software).

229   See GNU-GPL § 1.

230   See id.

231   See GNU-GPL § 2. The requirement that the modified version be licensed under the terms of the GNU-GPL is critical because it prevents the incorporation of GPL-ed software into proprietary software. This is also the main difference between the GNU-GPL and the GNU Lesser General Public License, which permits that LGPL-ed programs be incorporated into proprietary software.

232   See GNU-GPL § 3.

233   See, e.g., the Mozilla Public License, at http://www.mozilla.org/MPL/MPL-1.1.html (last visited Aug. 1, 2000), which Netscape drafted for the release of the source of its web browser Navigator.

234   See http://www.debian.org/social_contract#guidelines (last visited Aug. 1, 2000).

235   The text of the Open Source Definition is available at http://www.opensource.org/osd.html (last visited Aug. 1, 2000). See PERENS, supra note 193, at 176, for a detailed discussion of the Open Source Definition.

236   See http://www.x.org/terms.htm (last visited Aug. 1, 2000).

237   Not all flavors of the BSD operating system use the same license. See http://www.freebsd.org/copyright/license.html for the original BSD license, and http://www.freebsd.org/copyright/freebsd-license.html for the FreeBSD license.

238   See http://www.apache.org/docs/LICENSE for the Apache license.

239   The GNOME/KDE war is maybe the most instructive example. The K Desktop Environment ("KDE"), which is the predominant graphical user interface for Linux, uses Troll Technologies' Qt library, which, at the time it was first released, was proprietary software. The open source community responded to this incorporation of proprietary code into an otherwise completely free software package in two ways: On the one hand, a group of open source developers began to work on a substitute for KDE, known as the GNU Network Object Model Environment ("GNOME"). GNOME is intended ultimately to offer the same functionality as KDE, but instead of using the Qt library, it is based on the GTK+ library, which is completely free. Another group of developers focused their efforts on Harmony, a library intended to replace Qt, thereby making it possible to run KDE without Qt. Faced with the relentless determination of the open source community, Troll Technologies responded by announcing in November 1998 that it would change its licensing scheme and make the Qt library free. See DIBONA, supra note 210, at 4; Stallman, supra note 8, at 67.

240   Shrink-wrap licenses are similar to click-through licenses in that both require a person to act in a certain manner, thereby expressing her consent to the terms set forth in the license, before the product governed by the license may be used, but after it has been bought. Shrink-wrap licenses originally derive their name from the fact that software producers often wrap CD-ROMs in plastic "shrinkwrap," which consumers must break to access the CD-ROM. See ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996).

241   Id. at 1448.

242   Pub. L. No. 106-229 (2000).

243   Id at § 101.

244   See, e.g., Thomas L. Hazen, Contract Principles as a Guide for Protecting Intellectual Property Rights in Computer Software, 20 U.C. DAVIS L. REV. 105, 112 (1986); David A. Rice, Licensing the Use of Computer Program Copies and the Copyright Act First Sale Doctrine, 30 JURIMETRICS J. 157 (1990).

245   Young, supra note 194, at 123 (describing Linux as more efficient and reliable than other operating systems).

246   BENDER, supra note 10, at 2-118.4 (quoting a study published by the Microsoft Press in 1993, suggesting that computer programs with a size of less than two kilobytes contain on average 12.5 bugs per one thousand lines of code, whereas programs of more than 512 kilobytes contain 52 bugs per one thousand lines of code).

247   See Bill Gates, FOCUS, Oct. 23, 1995, at 206 (asserting that "[t]here are no significant bugs in our released software that any significant number of users want fixed.").

248   See Gates, supra note 247 ("If you visit the Microsoft hotline, you'll literally have to wait weeks if not months until someone calls in with a bug in one of our programs. 99.99% of calls turn out to be user mistakes.").

249   BENDER, supra note 10, at 1-18.7-1-18.8 (noting, by reference to an estimate made by AT&T Bell Laboratories in the mid-1980s, that "[fixing] an error in the design phase costs nothing, but once coded the cost to fix it rises to 100 dollars, and to 10,000 dollars once the software is in the field.").

250   See Gates, supra note 247 ("I know not a single less irrelevant reason for an update than bug fixes. The reasons for updates are to present more new features.")

251   See, e.g., BENDER, supra note 10, § 4A.02[2], at 4A-119 (noting that software licenses usually limit liability in the event of program malfunction and include "as is" warranties and disclaimers of warranty of merchantability and fitness for a particular purpose).

252   See Eric Raymond, The Cathedral and the Bazaar, available at http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/ (last visited Aug. 1, 2000).

253   As Linus Torvalds has said, "[g]iven enough eyeballs, all bugs are shallow." Furthermore, as Torvalds points out, the person discovering a problem is not necessarily the one who ultimately resolves it. See Raymond, supra note 252, at Part IV, available at http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/x147.html (last visited Aug. 1, 2000).

254   Id.

255   The GNU/Linux kernel, for example, has at times been released several times per day. See id.

256   See FreeBSD http://www.freebsd.org (last visited Aug. 1, 2000), NetBSD http://www.netbsd.org (last visited Aug. 1, 2000), and OpenBSD http://www.openbsd.org (last visited Aug. 1, 2000).

257   This explains why open source development efforts have been particularly successful in the context of the Internet.

258   Menell, supra note 3, at 1057 ("[t]he process of technological advancement in the application programming field, as in other areas of technology, is through rapid sequential improvements to the existing knowledge base."); Bessen & Maskin, supra note 80, at 3.

259   See Raymond, supra note 252, at Part II, available at http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/x94.html (last visited Aug. 1, 2000) ("[g]ood programmers know what to write. Great ones know what to rewrite (and reuse).").

260   See id. (explaining, among other things, that Stallman chose Unix as the base operating system for the GNU project partly because of its code-reusing tradition). Linux is maybe the best example of an open source project that started by reusing existing code (in this case, the code of Minix, a Unix-type operating system for PCs, developed by Andrew Tanenbaum). See Chris DiBona, Sam Ockman & Mark Stone, The Tanenbaum-Torvalds Debate, in OPEN SOURCES, at 221 (Chris DiBona et al eds. 1999), for an authentic account of the origins of Linux.

261   See, e.g., DiBona, Ockman, Stone, supra note 210, at 5. It should be noted that both the GNU-GPL and the Open Source Definition allow the distribution of open source software for money. See text accompanying notes 229-235 supra.

262   This follows from fundamental principles of microeconomics.

263   Samuleson et al., supra note 4, at 2312 (arguing in favor of affording software legal protection because "behavior and other industrial design elements of programs are often expensive to develop and inexpensive to copy.").

264   Cantzler, supra note 12, at 429 (pointing out that "clones" reduce the incentive to develop software). The best example of an innovative company in a market economy is Xerox Palo Alto Research Center (PARC), which developed a lot of the innovations that form the basis of modern computing, such as the local-area network (Ethernet), the graphical user interface, the mouse, and the laser printer. See Raymond, supra note 188, at 22.

265   Vixie Enterprises is may be an instructive example. Paul Vixie, the founder of the company, once developed a computer program called "BIND" for converting Internet domain names into IP addresses. The company makes money by offering consulting services in connection with BIND; the program itself is free. Another example is Cygnus Solutions, which provides support for the GNU C compiler. See Michael Tiemann, Future of Cygnus Solutions--An Enterpreneur's Account, in OPEN SOURCES, at 71 (Chris DiBona, et al eds. 1999).

266   One example is VA Linux, which sells ready-for-use computers running the Linux operating system. Another one is Stallman's porting of the GCC compiler to various platforms. See Stallman, supra note 8, at 61.

267   Richard Stallman offered courses on how to use the GNU Emacs editor. Id.

268   Young, supra note 194, at 115.

269   For a discussion of the merger doctrine, see generally Nimmer on Copyright, §2.18, 1-2 (2000).

270   Id. at 116-117 (mentioning Evian and explaining that "[the irrational fear of purchasing lemons] is the . . . reason that many people prefer to purchase 'Official' Red Hat Linux in a box for $50 when they could download it for free or buy unofficial CD-ROM copies of Red Hat for as little as $2.").

271   Red Hat does make these ancillary programs available as open source software, but this does not refute the argument made in the text. These programs (for example, the installation tool), are more appropriately analyzed as part of the services offered by Red Hat (that is, facilitating the use of Linux) and not as part of the product in relation to which it offers that service (that is, Linux). Therefore, the fact that Red Hat makes some programs available as open source software does not explain the incentive of people to write such software in the first place.

272   See Raymond, supra note 252, at Part X, available at http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/x305.html (last visited Aug. 1, 2000).

273   See Raymond, supra note 252, at Part XI, available at http://www.tuxedo.org/~esr/writings/cathedral-bazaar/cathedral-bazaar/x340.html (last visited Aug. 1, 2000).

274   Raymond, supra note 252, at Part II.

275   Stallman, supra note 8, at 54. Stallman's argument that "the free software movement demonstrated that [it] can make plenty of useful software" misses the point since the question is not whether the software produced is useful, but whether it is the type of software that consumers (and not hackers) want.

276   All else being equal, open source developers tend to value the functionality of software more than its user friendliness. This explains not only the relatively late development of a graphical user interface for Linux but also the lack of user-friendly documentation for a lot of open source projects. In practice, up-and-coming developers are more likely to impress their peers with technical finesse than with userfriendly interfaces. Therefore, they have only a limited incentive to accommodate the needs of consumers.

277   While the GNU project has been vastly successful in terms of the number of applications written, its core, the HURD Kernel is years overdue. Stallman, supra note 8, at 65 ("[m]aking the HURD work solidly has stretched on for many years.").

278   To find a definitive answer to this question, it will be necessary to conduct empirical studies and to identify and quantify the incentives and opportunity costs of software developers.

279   The mere existence of an alternative to proprietary software may create benefits in its own right. The reasons are similar to those for why regulatory competition can be a good thing: At any given point, if the market perceives a piece of open source software as better than proprietary alternatives, this might create an incentive for the software producer manufacturing the proprietary product to improve its quality. Innovations made by commercial software companies also might encourage the open source community to design an even better open source substitute, as in the competition between KDE and GNOME. See note 239 supra.

280   See DiBona et al., supra note 210, at 7 (quoting Grace Hopper, the inventor of the compiler as saying "[t]o me programming is more than an important practical art. It is also a gigantic undertaking in the foundations of knowledge."); BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT 2 (1967) ("[e]ducation . . . proceeds from a kind of mimicry . . . . ").

281   Cf. supra Part I.A.

282   LESSIG, CODE, supra note 9; Lawrence Lessig, The Law of The Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501 (1999).

283   See id., at 507. See also Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661, 662-66 (1998).

284   LESSIG, supra note 282, at 507.

285   The market might be seen merely as a combination of law-based regulation (contract and property law), regulation by social norms (to the extent social norms influence people's desires), and regulation by architecture. Since the market forces of supply and demand provide an independent set of self-enforcing rules, however, it is better to consider the market a separate regulator. Lessig, supra note 284, at 507, n. 16.

286   LESSIG, supra note 284, at 513 (noting that for any given problem a regulator has to find the optimal regulatory mix).

287   Id. at 512-513.

288   A market is perfectly competitive when: (i) there are a huge number of buyers and sellers; (ii) the products traded in the market are homogenous; (iii) each market participant has perfect knowledge of the offers made by each side; (iv) there are no barriers to entry into or exit out of a market; and (v) transaction costs are zero. In markets where these conditions are fully satisfied, no firm has any influence over the equilibrium price. The further a market moves away from these conditions the more individual firms or firms acting in concert may be able to exercise an influence over prices.

289   LESSIG, CODE, supra note 92.

290   See http://www.ietf.org (last visited Aug. 1, 2000).

291   See http://www.w3c.org (last visited Aug. 1, 2000).

292   SCOTT BRADNER, The Internet Engineering Task Force, in OPEN SOURCES, at 48 (Chris DiBona et al eds. 1999) (describing the history of the IETF).

293   Id. at 48.

294   Id. at 47. The most prominent of these protocols is TCP/IP.

295   Interestingly, the internal processes of the IETF resemble in many ways the open source software development process. For one thing, all of the IETF's working drafts are available to the public. See http://www.ietf.org/ID.html (last visited Aug. 1, 2000). Furthermore, IETF membership is completely open. Anyone can have his or her name added to an IETF mailing list and thereby participate in the standard-setting process. The higher ranks within the IETF organization-i.e., the Internet Engineering Steering Group (the "IESG"), which is responsible for approving new standards, and the Internet Architecture Board (the "IAB"), which serves as an advisory body to the IESG-are nominated by the people who have attended at least two of the previous three IETF meetings.

296   DRATLER, supra note 1, § 5.02[1][b], at 5-28.

297   For a justification of intellectual property law based on the utilitarian theory, see Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281 (1970); William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 353-57 (1989). For an analysis based on the labor-desert theory, see Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343 (1989); Wendy J. Gordon, On Owning Information: Intellectual Property and Restitutional Impulse, 78 VA. L. REV. 149 (1992); Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993); Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 546-47 (1990). For the personality theory approach, see Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865, 1871, 1881-88 (1990); Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991 (1990); Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982); Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 HARV. L. REV. 554 (1940); Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 207 (1890); Carl H. Settlemyer III, Note, Between Thought and Possession: Artists' "Moral Rights" and Public Access to Creative Works, 81 GEO. L.J. 2291 (1993).

298   Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533 (1993) at 1564 ("[a]ll persons are equal and have an equal right to the common."); JOHN LOCKE, TWO TREATISES OF GOVERNMENT at 286 (bk. II, 26) (Peter Laslett ed.) (3d ed. 1698) ("no body has originally a private dominion exclusive of the rest of mankind.").

299   See supra note 297.

300   The U.S. Supreme Court, e.g., uses both theories in analyzing intellectual property issues. Compare Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (noting that intellectual property law "is intended to motivate the creative activity of authors and inventors by the provision of a special reward") with Mazer. v. Stein, 347 U.S. 201, 219 (1954) ( "sacrificial days devoted to . . . creative activities deserve rewards commensurate with the services rendered.").

301   See supra Part II.B.

302   See U.S. CONST., Art. I, § 8, cl. 8 (empowering Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the Exclusive Right to their respective Writings and Discoveries.") (emphasis added).

303   See, e.g., United States v. Line Material Co., 333 U.S. 287, 316 (1948) (Douglas J., concurring) (noting, with respect to the Intellectual Property Clause of the Constitution, that "the public interest comes first and reward to inventors second"); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 665-666 (1944) (noting that "[i]t is the public interest which is dominant in the patent system" and that "[t]he patent is a privilege . . . conditioned by a public purpose"); Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832 at 842 ("[T]he Constitution sets forth the purpose of copyright protection as the promotion of 'the Progress of Science', not the rewarding of authors.").

304   Cf. Diamond v. Chakrabarty, 447 U.S. 303 at 307 (noting that Congress exercises the authority conferred upon it under the Intellectual Property Clause of the Constitution "in the hope that '[t]he productive effort thereby fostered will have a positive effect on society.") (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (explaining, with respect to copyright law, that "[t]he immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.").

305   See Terry Fisher, Theories of Intellectual Property, forthcoming in NEW ESSAYS IN THE LEGAL AND POLITICAL THEORY OF PROPERTY available at http://www.law.harvard.edu/Academic_Affairs/coursepages/tfisher/iptheory.html ("the first task in developing a utilitarian theory of intellectual property is translating the Benthamite ideal of the 'greatest good of the greatest number' into a more precise and administrable standard.") See id (naming wealth maximization as one possible standard and the "Kaldor-Hicks" criterion as another; according to the latter criterion, state A is preferable to state B, if all persons gaining by moving from state B to state A can compensate by a lump-sum payment all those who lose). See also Richard A. Posner, ECONOMIC ANALYSIS OF LAW (3rd ed. 1986), 11-15 (discussing wealth maximization and the Kaldo-Hicks Criterion); Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, ECON. J. v. 49 Issue 195, at 549 (1939) (discussing the Kaldor-Hicks criterion).

306   The latter proposition might be challenged on the ground that the taste of the public at large is not necessarily the best indication of whether an idea is socially valuable or not. Arguably, a rich pool of diverse ideas may lead to a more desirable society than a commons filled with more or less uniform opinions. Whatever one's vision of a society, however, the basic thrust of the argument remains the same. For purposes of this Article, it will be assumed that social welfare reaches its maximum when the number of ideas that most people find attractive is greatest.

307   See Aiken, 422 U.S. 151 at 156 (describing the goal of copyright law as "promoting broad public availability of literature, music, and the other arts.").

308   But see, e.g., Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 HARV. L. REV. 1420 (1999).

309   See Fisher, supra note 305.

310   See supra Part II.B.1.

311   See Raymond, supra note 252.

312   This is not to say that non-monetary benefits may never induce creators to spend cash. Generally speaking, however, it would seem that the willingness of creators to incur pecuniary expenses is greater if they may expect to be rewarded in a form that allows them to cover these expenses. Put that way, the observation made in the text would appear to hold true despite the fact that there is not much evidence on what impact intrinsic benefits have on creators. See Fisher, supra note 305 (quoting several authorities for the proposition that even in the absence of intellectual property law, current levels of product might be maintained.).

313   See STEVEN SHAVELL & TANGUY VAN YPERSELE, REWARDS VERSUS INTELLECTUAL PROPERTY RIGHTS, (Nat'l Bureau of Econ. Research, Working Paper 6956) available at http://www.law.harvard.edu/programs/olin_center/papers/pdf/246.pdf (last visited Aug. 1, 2000).

314   See Fisher, supra note 305. A potential flaw in this argument is that under the current intellectual property system, the test for whether or not consumers find a particular idea attractive occurs only after the idea has been conceived and developed into a marketable product. The availability of intellectual property protection for such products, however, does not guide creators who seek to ascertain in advance whether or not consumers might like a particular idea. In rebuttal, one might point out that the availability of protection down the road does encourage creators to make an effort researching consumers' tastes.

315   See SHAVELL & VAN YPERSELE supra note 313.

316   U.S. CONST., art. I, § 8, cl. 8.

317   Estimates of the optimal term of protection are attended by great uncertainties. One reason is that some creators may be able to recoup their costs of creation faster than others. Even if that period were more or less uniform, however, it would remain very difficult, if not impossible, for legislatures to quantify the time.

318   See Gordon, supra note 297; Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L. J. 287, 296 (1988).

319   See LOCKE, supra note 298.

320   Id. at 286 (bk. II, 26).

321   Gordon, supra note 297, at 1544.

322   See id. for a discussion of these natural rights and obligations. In essence, all persons have: (a) an obligation not to harm each other; (b) a right to use the commons and to dispose of their efforts as they see fit; (c) an obligation to share one's resources if they otherwise would spoil or be wasted or if other people are in great need, provided that the sharing does not endanger one's own survival; and (d) an obligation not to interfere with resources that others have appropriated by laboring on the commons.

323   See, e.g., Mazer v. Stein, 347 U.S. 201 at 219 (suggesting that "[s]acrificial days devoted to . . . creative activities deserve rewards commensurate with the services rendered."); see also Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (No. 4,436) (arguing in favor of copyright protection for factual works on the ground that "[a] man has a right to the copyright of a map of a state or country, which he has surveyed or caused to be complied from existing materials, at his own expense, or skill, or labor, or money . . . . ").

324   Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (denying the creator of a white page telephone directory that merely listed the names of all subscribers in alphabetical order copyright protection on the ground that the creation involved no originality).

325   Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002-03 (1984) (quoting Locke in support of the proposition that trade secrets may be considered property for purposes of the Takings Clause of the Fifth Amendment.).

326   See, e.g., Int'l News Serv. v. Associated Press, 248 U.S. 215, 239 (1918).

327   LOCKE, supra note 298, at 288 (bk. II, 27). See also Gordon, supra note 297, at 1563 (arguing that "creators should have property in their original works, only provided that such grant of property does no harm to other persons' equal abilities to create or to draw upon the preexisting cultural matrix and scientific heritage.").

328   Gordon, supra note 297, at 1560.

329   Id. (noting that one of the three property rights is the "claim right to exclude.").

330   See supra note 298.

331   Gordon, supra note 297, at 1565.

332   Id. at 1581.

333   Id. at 1582 (describing the practical problems that intellectual property protection of abstract ideas combined with an exception for independent development would create: "Since one often does not know in advance what one is about to learn irretrievably by participating in daily life in our media-saturated culture, learning from others will be unavoidable in circumstances where independent creation would also have been possible, and giving the first inventor a right to prohibit all copying of his creation could close off some of the best opportunities otherwise open to others.").

334   Id. at 1581.

335   Cf. Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 842 (Fed. Cir. 1992) (noting, with respect to copyright law, that "[t]he copyright holder has a property interest in preventing others from reaping the fruits of his labor, not in preventing the authors and thinkers of the future from making use of, or building upon, his advances.").

336   See supra Parts I.B.1 and I.B.2.

337   See 35 U.S.C. § 101 (2000).

338   See 17 U.S.C. § 102 (2000).

339   See supra Part I.B.3.

340   See supra Part I.C.

341   Id.

342   See supra Part I.A.

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