The Microsoft code leak — a legal perspective

Groklaw asked a well-known US academic lawyer (Dennis S. Karjala, Jack E. Brown Professor of Law, College of Law, ASU) to comment on the legal implications of the Wincode leak. Here’s what he wrote:

“Media reports say that portions of Microsoft’s source code for Windows have leaked and found their way onto the internet. Is this now an opportunity for would-be cloners of Windows to find out how it really works and make their own, let us assume noninfringing, operating systems that are Windows compatible? Or would any such attempt be a violation of Microsoft’s copyright or trade secret rights, subjecting such a competitor to suffer the legal wrath of Microsoft’s litigation teams?

Without knowing more of the facts, the answer could be, “Both.” To the extent that source code is now being widely distributed over the internet, horn book trade secret law would say that Microsoft has lost its trade secret rights (although it may have a claim for damages against the leaker). The code is simply not a secret any longer, notwithstanding Microsoft’s best efforts (let us assume) to keep it so.

Copyright, however, poses a different problem. Every transfer of the code on the internet, and indeed every use of a computer to look at the code, involves making a technical “copy.” Courts have fairly uniformly held that such technical copying – made necessary by digital technology – infringes Microsoft’s exclusive right to reproduce the work in question (here, the Windows source code, a literary work). Absent fair use, anyone who causes his or her computer to put the code onto the screen (or to print out the whole version) is subject to all of the draconian remedies of copyright.

On the other hand, it is still not yet an infringement of copyright simply to read an infringing copy of a work (unless perhaps you break through a technological measure designed to control access to it, which would invoke the DMCA). If someone, without any involvement by you, prints out a copy of the source code and sends it to you, or if you just happen to find such a copy lying around somewhere, reading that copy does not infringe any Microsoft copyrights. (Conceivably, if someone has independently called the document to the computer screen and you happen by and read it after it has been stored in RAM, you are equally in the clear.)

Depending on how far the distribution goes, it seems to me likely that both of these scenarios will take place. Whether Microsoft will go after the infringing ones, especially after infringing hard copies become widely available for noninfringing study, is difficult to predict. But this is in any event unlikely to stop development by others working from illegally made copies that they had no part in making. If that is the case, this event may actually lead to a lessening of Microsoft’s strong grip on the PC operating system market.”